The world as we know it is at the brink of a revolution. While spaceflight saw exponential growth in the 1950s and 60s, rapidly progressing from its infancy to landing a man on the moon, the decades since have been relatively stagnant.[i] But that is quickly changing. Private companies are now pushing the envelope of space exploration and showing that it can be accomplished quicker and cheaper than ever thought possible.
For example, SpaceX has a proven track record of reliably landing its rocket boosters onto drone ships—or even back on their launch pads—to be reused for future flights, drastically cutting costs.[ii] They have successfully sent NASA astronauts to the Space Station, and they are scheduled to begin commercial flights soon.[iii] Virgin Galactic has been launching spaceships from mothership aircraft that haul them tens of thousands of feet up in the air, where less energy is required for the launch.[iv] Other companies, like Blue Origin,[v] are not far behind. It is a question of when—not if—private companies will routinely blast into orbit, and eventually travel freely throughout the Solar System and beyond.
When that happens, new legal questions will invariably be encountered. If a private spacecraft—say, a SpaceX Starship—is the first manned vehicle to land on Mars, and they set up a colony, do they own that Martian land? Do they own the entire Mars? What if they plant a flag and leave? What if they rocket around the Solar System and stake claims on every planet and asteroid—do they own it all? Can they prevent others from visiting? Do they own all the resources that may be contained on those planets and asteroids? These questions sound futuristic, but that future is right around the corner.
To begin answering these questions, we start where most property law courses begin—the doctrine of Discovery.[vi] The doctrine of Discovery was famously, and controversially, applied by Chief Justice John Marshall in Johnson v. M'Intosh to support land acquisition by European colonists.[vii] Putting the controversial application aside, though, at the heart of Discovery is “first come first serve,” or terra nullius (“a territory belonging to no one” in Latin).[viii] It was a principle sometimes used in international law to justify claims that territory may be acquired by a state’s occupation of it. Thus, in a scenario where truly no human has set foot on a territory, property ownership should incontrovertibly, at least in theory, vest in the discoverer who first sets foot there.
Even in recent times, terra nullius claims have abounded here on terra firma ("solid earth” in Latin). Examples include claims to portions of Antarctica (Marie Byrd Land), a territory between Egypt and Sudan called Bir Tawil, and a 2.7 square mile parcel of land on the Danube River called Liberland.[ix] However, Bir Tawil and Liberland are more nuanced in that they are subject to territorial disputes where each of two opposing countries discount a claim to a smaller territory in favor of a larger territory, arguably leaving the smaller territory a terra nullius. And in the case of Antarctica, the international Antarctic Treaty dictates that “No acts or activities taking place while the present treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica.”[x]
Territory in outer space may also be subject to various international treaties. For example, the Outer Space Treaty of 1967 states “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.”[xi] The Moon Treaty of 1979 states “Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person.”[xii] Provisions of the Moon Treaty also apply to “to other celestial bodies within the solar system.”[xiii]
These international treaties appear to restrict the ability to take ownership of real estate, and, in the case of the Moon Treaty, even resources, in space. Regarding resources, however, former President Donald Trump signed Executive Order 13914 on April 6, 2020 to encourage commercial space exploration, stating that “Americans should have the right to engage in commercial exploration, recovery, and use of resources in outer space.”[xiv]
Moreover, the applicability of the aforementioned international treaties to private space explorers is questionable to begin with. The Outer Space Treaty is only directed to “national appropriation” and does not explicitly address private actors. The Moon Treaty is broader in coverage but has only been ratified by a few countries, which do not include major space players like the United States, Russia, and China, and is widely recognized as a failure.[xv] Based on similar reasoning, American entrepreneur Dennis Hope has been selling millions of acres of lunar real estate since the 1980s.[xvi] In contrast to Mr. Hope’s claim to ownership which is not based on any recognized legal premise, a space explorer who is the first person to set foot on a planet, should have a strong claim to ownership under the Discovery doctrine and terra nullius.
However, a strong claim to ownership is only half the picture. For the ownership to be meaningful, it has to be officially recognized by other states. Otherwise, any state, party, or actor can freely violate the ownership without fear of repercussion, unless the owner amasses a formidable enough protectionary force to act as a deterrent. This route would potentially lead the galaxy down a very violent and lawless path. There is a need, therefore, for a globally accepted framework to dictate when, where, and how a party can acquire and use real estate and resources in outer space. Failure to do so expeditiously will surely lead to disaster.
[vi] See, e.g., Jesse Dukeminier et al, Property 40 (9th ed. 2018).
[vii] Johnson v. M'Intosh, 21 U.S. 543, 5 L. Ed. 681 (1823)
[viii] Dukeminier, supra note vi, at 49.
[xv] Listner, Michael (24 October 2011). "The Moon Treaty: failed international law or waiting in the shadows?". The Space Review. 9 October 2015
[xvi] Jaggard, Victoria (2009-07-17). "Who Owns the Moon? The Galactic Government vs. The UN". National Geographic News