My space

If we really want to explore space, maybe we should sell it off to the highest bidders

Email|Print|Single Page| Text size + By Drake Bennett
May 18, 2008

IF THE PAST few years have taught us anything, it is to not underestimate the intoxicating allure of property. Real estate, it turns out, brings out the adventurer in all of us.

It's unsurprising, then, that a few enterprising thinkers are hoping to harness that power in a more exotic neighborhood: space.

No one, of course, owns space - not even the relatively tiny portion of it within humankind's reach. While the space race may have been kicked off by Cold War politics, its rhetoric has always been fastidiously communal, eschewing talk of ownership. "We set sail on this new sea because there is new knowledge to be gained and new rights to be won, and they must be won and used for the progress of all people," President Kennedy intoned in a famous 1962 speech laying out the rationale for putting a man on the moon.

In other words, while exploring space has been a race, a mission, and an adventure, it has never been a business.

Recently, however, there's been growing interest in changing that. In the small community of people who think seriously about space exploration, a few are arguing that exporting the idea of private property into space is exactly what we need to do to launch a bold new space race.

Space exploration remains a very risky, complex, and expensive endeavor. And while the number of at least nominal space nations looks to grow in coming years, here in the United States there's a sense among space exploration enthusiasts that the government just isn't willing to spend the money necessary to make projects like a permanent moon base or manned Mars expeditions succeed.

Better, some suggest, to rely on individual avarice to spur exploration, by allowing private explorers to stake a claim, like celestial Sooners, to the lands they reach. Giving extraterrestrial property rights could be a powerful force, not only for exploration, but for the efficient development of the discovered and undiscovered resources of space. Celestial bodies such as the moon and the thousands of near-Earth asteroids may prove to be highly lucrative pieces of property - as sources of minerals and clean energy, venues for scientific experimentation and high-end tourism, or simply as open space for refugees from an increasingly crowded planet.

"Property rights will provide the only economic incentive that will possibly justify entrepreneurial space exploration," says Alan Wasser, chairman of the Space Settlement Institute and the former CEO of the National Space Society. The exploration and settlement of space "benefits all mankind, but all mankind doesn't want to put up the money."

Already, space is becoming the province of the private sector: hundreds of private satellites now orbit the planet. And within a few years, private space travel has gone from concept to near-reality. Virgin Galactic's SpaceshipTwo suborbital spacecraft is already taking reservations from aspiring space tourists, and hopes to start flights by 2010. Amazon founder Jeff Bezos's own space tourism craft is on a similar timeline. The prototype of Las Vegas hotel billionaire Robert Bigelow's "space hotel," a private space station that he envisions could be rented out to everyone from wealthy vacationers to national space programs, has been in orbit since July 2006.

These successes have suggested to some space exploration proponents that private efforts, given the right incentives, might be capable of meeting far more ambitious goals, bringing new technologies, lower costs, and a swashbuckling attitude to a field traditionally dominated by public bureaucracies.

There's a variety of opinion as to how extensive extraterrestrial property rights should be - whether to allow, for example, the outright buying and selling of land, or whether to forbid ownership and instead rely on leases, trusts, and easements - but there's nonetheless a growing consensus that some form of space property is inevitable and necessary. In 2004, President Bush's Commission on Implementation of United States Space Exploration Policy announced that a key component of the exploration of the solar system was assuring "appropriate property rights for those who seek to develop space resources and infrastructure."

The debate is playing out among the growing number of lawyers who have dedicated themselves to the once obscure field of "space law," a specialty that covers everything from space tourism liability issues to import and export restrictions on satellite parts.

And while the question of property on the moon remains, for the time being, an abstract one, for space property proponents it's far from frivolous. Whether it's 16th-century English privateer-explorers or the Dutch East India Company, 19th-century American homesteaders or the building of the Transcontinental Railroad, privatization has a long history as a catalyst for discovery, development, and settlement. Now, some say, it's time to look up.

One of the more straightforward models for celestial private property has been put forward by Wasser. He made his case most recently in an article in the winter issue of the Journal of Air Law and Commerce: The United States and other national governments, he argues, should pass what he calls "land claim recognition" legislation. Under such laws, courts would recognize private property claims on the moon or other celestial bodies so long as the claimant has established a settlement there. Wasser proposes limiting lunar property-holders to plots the size of Alaska - that leaves plenty for others, but also is big enough that selling it off would turn a profit even after what are sure to be the enormous expenses incurred getting to the moon in the first place.

After that, Wasser argues, the process becomes self-perpetuating. Land sales pay for the cost of developing safe transport and that encourages further settlement, which drives up land prices even more.

A key stipulation, though, would be that space property ownership deeds would require the owners to sell people rides to whatever celestial body the property was on - thereby speeding up the process of settlement and spreading around the benefits of whatever space-travel breakthroughs had been arrived at by the property holder.

"The point of all this is to open the frontier for everyone," Wasser says, "and obviously being willing to sell rides to the settlement would be a way of accomplishing that."

Another model, proposed by the Houston-based lawyer Wayne White, would make ownership contingent on physical occupation. A company could claim ownership of a piece of space only as big as its employees could physically occupy, and only so long as they were actually there. Such a limitation would, he has argued, prevent people from claiming more property than they could develop.

A third model tries to ensure that the most advanced national and private programs wouldn't scoop up all the available celestial property as soon as it became accessible. The extraterrestrial property regime envisioned by Glenn Reynolds, a professor and space law specialist at the University of Tennessee Law School, and Robert Merges, a professor at the University of California at Berkeley's Boalt Hall School of Law, would be, in most ways, a basic first-come, first-served system. But it would have one key condition: A portion of the total available property would be set aside for a period of time to give developing nations a chance to catch up and to bid once they'd reached the point at which they were technologically and financially able.

It is far too early to know how valuable such property claims would be, but scientists and engineers point to a few potential sources of value in the celestial bodies currently within our reach. A medium-sized asteroid, for example, can contain trillions of dollars of gold, platinum, iron, zinc, and aluminum - enough that whoever figured out how to profitably extract it and get it to Earth would single-handedly collapse world prices for those metals and still make out like Croesus. The California-based company SpaceDev, a producer of rocket engines and small satellites, has been trying to figure out how to make asteroid mining viable for nearly a decade.

Speculation about the moon's riches has focused on helium-3. Some physicists see the isotope, which is abundant on the moon and all but nonexistent on Earth, as a potential nuclear fusion fuel. And nuclear fusion, while it has proven frustratingly difficult to control, is a sort of holy grail of energy technology, promising vast amounts of power with almost no waste. And the metal that traps the helium-3 on the moon's surface is titanium, valuable in its own right.

With its long days, lack of an atmosphere, and wide-open spaces, the moon would also make an ideal place to put massive solar power plants, say some proponents. The solar arrays could be built from materials readily available on the moon and the power beamed to Earth via microwaves. Wasser also envisions a thriving lunar tourist industry, lunar laboratories for scientists wanting to run experiments in low-gravity conditions, even televised novelty sporting events like "flying football."

There is, though, a surprising lack of consensus over the question of whether private citizens can today own property in space. The closest thing that space has to a constitution is the Outer Space Treaty of 1967, and while it forbids claims of national sovereignty in space, it doesn't mention ownership by private citizens.

Because the treaty holds nations responsible for the activities of their citizens in space, however, several space law scholars argue that it effectively bans private property as well. Rosanna Sattler, a partner and space law specialist at the Boston law firm Posternak, Blankstein & Lund, and the author of a 2005 article in the Chicago Journal of International Law about space property rights, takes this position. Even if an aspiring lunar real estate speculator could get to the moon, she says, any attempt to sell celestial property "is like me selling you a piece of the Brooklyn Bridge."

Perhaps unsurprisingly, there have already been efforts to claim extraterrestrial property. A Nevada-based company called the Lunar Embassy sells deeds to one-acre "prime view" moon plots for $19.99 - founder Dennis Hope claims to have sold more than $10 million worth of lunar real estate so far. In 2001, also in Nevada, a man named Gregory Nemitz sued NASA for $20 in parking and storage fees when the agency's robotic spacecraft landed on the asteroid Eros, which Nemitz had claimed the year before. The case was dismissed by a federal district judge on the grounds that Nemitz's claim had "absolutely no legal basis."

The Outer Space Treaty could, with enough political will, be changed, but some space lawyers believe that would be a dangerous thing to do. The international space law regime may be outdated, says Leslie Tennen, a Phoenix-based lawyer who consults with government and industry on space law questions, but the system has been successful in its main goal: keeping space peaceful. Allowing private ownership claims in space has the potential to change that. In space there is no sovereign government to resolve competing territorial claims, and if the claimants are from different countries, he says, there's a good chance their respective governments would feel compelled to get involved.

"You're going to export all of the problems that have plagued us on Earth regarding defending title, and all the innumerable wars that has led to," says Tennen.

Other space law scholars argue that because small oversights in space can easily have lethal consequences, it is not the place for a freewheeling system of competing private approaches. "The space environment is one in which you throw out one screw and it goes flying around the globe at tens of thousands of kilometers an hour - that does not happen on Earth," points out Ram Jakhu, an associate professor of air and space law at McGill University. The growing amount of human-generated space debris is already a serious threat to satellites and spacecraft in the near-Earth region of space.

Better, say Tennen, Jakhu, and others, to set up a lease or license system. In one version of this, an international body would have the authority to award leases to - and then keep an eye on - those private parties hoping to develop parts of the moon or mine platinum from asteroids. Unlike in traditional terrestrial leases, however, the land would remain unowned, even by the governmental body itself. (Tennen calls such instruments not leases but "enterprise rights" to remove any whiff of ownership.) It's a system similar to how we award mining rights beneath the oceans, which, like space, are off-limits to national ownership.

To law professor Glenn Reynolds, these concerns are overblown, and ignore what to him is the great value of the property right: people take better care of something if they own it.

"If you give someone grazing rights on communally owned land, well, that's the definition of the tragedy of the commons," he says.

For thinkers like Wasser, celestial private property is important not simply because of helium-3 mining or moon-based solar arrays, it's important because it would allow for large-scale colonization. In such a future, Wasser believes, it simply doesn't make sense not to have private property in space, any more than it would make sense for people in the United States not to be able to buy and sell and inherit their homes.

The colonization of space, in this model, would unfold as a sort of interplanetary suburbanization, with the moon and other celestial bodies being settled thanks to reliable transportation and the ready availability of private plots of land. For all the technological marvels required to make this happen, it's a story Americans are pretty familiar with.

Drake Bennett is the staff writer for Ideas. E-mail

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