Science journalist and space historian Bob Zimmerman recently proposed that the president and Congress establish a Spacestead Act, modeled on the Homestead Act of 1862, that would grant property on extraterrestrial bodies such as the Moon to people who settle there. To enable this “spacesteading,” Zimmerman urges President Trump to withdraw from the current Outer Space Treaty, adopted in 1967, and attempt to negotiate a new one.
But the incentives for most countries to agree to a new treaty rewarding permanent title to those few countries and companies currently able to get to the Moon on their own appear to be thin. Zimmerman is responding to a perceived weakness of the 1967 Outer Space Treaty—that it prohibits private individuals and organizations from owning property in space, and thereby prevents those who wish to mine or establish bases on an extraterrestrial body from having confidence they will be able to retain rights to and eventually sell the resources or products created by their efforts in space. But does it?
There are different categories of property. One would be the equipment, tools, machines, habitats, and so on that a private entity would place or construct on the Moon or elsewhere. Article 8 of the treaty explicitly protects ownership of those items. Another kind of property might be the raw materials private enterprise might mine from the Moon or asteroids and the like to bring to Earth to sell. The treaty appears to be silent on that.
Laura Montgomery, a space lawyer, points out that it has been generally acknowledged for 45 years that the United States owns the rocks it brought back from the Moon. Based on that custom, the treaty should not undermine the case that private enterprise is also entitled to ownership of materials it removes from the Moon or elsewhere.
The Distinction Between Governments and Private Citizens
Ultimately, what Zimmerman wants to address is not the ownership of objects or extracted resources, but the title to real estate or territory. That is the kind of property some lawyers argue private enterprise is prohibited from owning by the Outer Space Treaty of 1967. The language they generally refer to is contained in Article 2, which is composed of a single sentence: “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.”
The language very specifically refers to “national appropriation.” It is silent on private enterprise. Those who say it prohibits private ownership suppose that a private entity cannot own real estate unless a nation has first claimed that territory. This assumption causes Zimmerman to propose replacing the Outer Space Treaty to establish his spacesteading plan. But, uncharacteristically for the author of a policy paper called “Capitalism in Space,” Zimmerman has put the government cart before the private enterprise horse.
Why must a government claim territory before a private enterprise uses it and stakes a claim? For the purpose of establishing a private claim, what function does a government provide outside being the depository of a claim certificate? None. Then what essential purpose of government causes Zimmerman to want government involved in private enterprise in space in the first place?
Government establishes a legal framework for enforcing law. So, rather than allow nations to make claims of territory, let us instead allow private enterprises to go to the Moon or elsewhere, stake a claim, and then, to establish a legal framework for resolving any disputes that arise, choose the government under whose legal jurisdiction their claim will reside. No governments would appropriate territory. They would merely be lending their courts to render judgments on legal disputes arising outside their territories. That would seem to satisfy Article 2. This scheme would not require a new Treaty but could probably be implemented via United Nations resolutions.
Use Railroads, Not Homesteading, As a Model
Zimmerman’s plan can be significantly improved in another respect. While he calls for allowing private enterprises to claim territory where they establish occupancy, he says nothing about encouraging private enterprises to deliver people and cargo to the territory. He modeled his plan on the Homestead Act of 1962, but an even better model to encourage space development is the building of the Transcontinental Railroad.
There, to encourage the building of the railroad, the U.S. government granted alternate sections of the land ten miles to each side of the railroad to the companies building it. The companies were then free to sell those sections to raise additional money. The space equivalent of building a railroad would be establishing a space port on the Moon or elsewhere and operating a common carrier route (open to all) for a specified period of time.
Passengers, whether scientific expeditions, employees of mining companies, or private tourists, would pay for the services of this space transportation company, possibly establishing research bases or tourist hotels. The UN would then accept a claim for the territory immediately around the space port plus a grant of alternating sections around it extending some specified distance or covering a specified area (adjusted for any bases or settlements already established).
The sections not granted to the company would be granted to the U.N. Office for Outer Space Affairs (UNOOSA) to be held in trust for all countries. These grants to UNOOSA would be done so as to satisfy Article 1 of the Outer Space Treaty which states, in part, “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…”
This scheme aligns the incentives of all the players in the same direction. The promise of a grant of territory gives the company providing the transportation a new and powerful way to monetize its risky investment. The operation of the common carrier makes that particular piece of extraterrestrial territory accessible by people from nations that do not now have any way of reaching it.
By making that particular territory in space accessible, the common carrier increases the value of both the territory it is granted and all the other territory surrounding its space port, particularly the territory UNOOSA holds in trust. UNOOSA could periodically sell portions of its land grants to fund operations or development assistance, thereby truly satisfying Article 1’s admonition that the use of space shall be carried out for the benefit of all countries.
This proposal would satisfy all the obligations under the Outer Space Treaty. It could be implemented through UN resolutions, avoiding the delay and risk of trying to negotiate a new treaty. Non-spacefaring nations would have an incentive to go along with it. And, finally, it provides the kinds of incentives that could make private space enterprises really take off.