But in this post, I want to address co-speaker Jim Dunstan’s critique of the concept, which he presented at the event, and is now available on line at TechFreedom.
I should start by noting that Jim is a long-time associate, fellow free-market space advocate, and (I hope) friend. I didn’t want to get into the weeds of a debate on the subject at the event, particularly because he didn’t put forth any new arguments — his statement was simply a reiteration of the argument that I had already refuted in the paper itself. But briefly, like other critics, he cites the combination of Articles II and VI of the Outer Space Treaty to debunk the potential loophole that I postulate in the Issue Analysis:
The negotiators of the Outer Space Treaty (OST) knew that such [property rights] claims would never stop unless the countries agreed once and for all, that:
Outer space, including the [M]oon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other
Article II of the OST couldn’t make it any clearer.
But wait, Rand and others argue that Article II of the OST only prohibits national appropriation, so individuals are free to do whatever they want in space. Well, not so fast. Article VI of the OST states:
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the [M]oon and other celestial bodies, whether such activities are carried on by governmental agencies or by nongovernmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.
Since launching states are required to ensure that their nationals conduct their activities in conformity with the provisions of the OST, and the OST denies states the ability to appropriate celestial bodies through use, occupation, or by any other means, there is no way that the United States could directly recognize land claims in outer space that were made based on use and occupation, as the legislation Rand proposes would do. The “loophole,” as Rand calls it, simply doesn’t exist.
First, I’ll note that it is a gross oversimplification (I won’t say straw man) of my (and others’) case to say that we claim that “individuals are free to do whatever they want in space.” I (and presumably they) recognize that Article VI (and later, the 1972 Liability Convention) make States Parties responsible for the actions of their nationals outside the atmosphere, so clearly there is no such extraterrestrial legal environment of unbridled laissez faire.
But if I read it correctly (I wouldn’t want to misstate his case, and knock down my own straw man), Jim argues (as do many) that because the OST denies States the ability to appropriate celestial bodies, and that States Parties are responsible for seeing that their nationals follow treaty provisions, that for a States Party to recognize such an appropriation by its nationals is similarly outlawed. But the end of his sentence doesn’t follow from the beginning. The beginning has the word “nationals” whereas the end simply states that no direct recognition of a claim (with the claimant unspecified) can occur. Herein lies the “loophole.”
As I said at the briefing, “Recognition is not appropriation.” I provided the example of the U.S. recognition of the right of the people of Taiwan to their territory, which does not in itself engender any obligation on our part to defend such a right, and it would be ludicrous to argue that such recognition amounted to a claim of U.S. sovereignty over the island, or an appropriation of its territory.
As I noted in the paper, the implicit assumption throughout the criticism is that a States Party would recognize the claims of its own nationals, but not that of others. The counterexample I used was that of a company domiciled in the Isle of Man, funded by Persian Gulf investors, with no U.S. involvement whatsoever. I repeat the question asked in the paper, and at the press briefing, which Jim doesn’t answer: How is recognition by the U.S. government of such a Dubai-funded Manx company’s claim a “national appropriation” by the U.S? Moreover, because one of the requirements of the claim recognition is that parcels of it be sold in a free-market exchange to all comers, regardless of their nationality, and even regardless of whether or not they are a government (though the latter could arguably be non-compliant per Article II), the notion that this would constitute a “national appropriation” would be absurd on its face.
Now, of course, this does raise an issue that the paper doesn’t address. The argument is that because the recognition is independent of the nationality of the claimant that it is not an explicitly sovereign claim, but it could of course be argued that even if true, this means that the U.S. government could recognize claims of any country’s national but its own. But this result would be so perverse that only a space lawyer could believe it.
I would contend that the intent and spirit of the treaty, as Professor Gorove noted in 1969, was to prevent States Parties from claiming sovereignty over celestial real estate in the manner that occurred during the Age of Exploration and colonial era, with all the subsequent bloodshed, and that our proposal is perfectly in keeping with (most importantly) this intent, but also the letter. But as I said in the paper, any opinions expressed on this issue, whether Jim Dunstan’s, my own, or that of (for example) Tanja Masson-Zwaan, current president of the International Institute of Space Law, are simply that — opinions, and will remain nothing more than that until the matter is litigated and adjudicated.
One other point. A question came up at the briefing as to whether or not there was any precedent for governmental recognition of a claim of extranational territory by one of its citizens based on occupation. I was unaware of any at the time, but I have since been pointed to the example of the Russian acquisition of Alaska, after the fur trader Gregor Shelikhov had established an outpost on Kodiak Island (though of course both the question and answer aren’t relevant to our proposal, which involves governmental recognition of non-citizens’ claims).
Jim Dunstan had one other objection — to fear what we might reap:
…if the United States were to pass such legislation, what would stop the Chinese from adopting domestic legislation that took it steps further, such that the first time a Chinese probe lands on the Moon, the Moon could be claimed by the “Great Wall Company” or some other entity solely owned by People’s Liberation Army? The United States would then be left to argue that our law that allows for private appropriation of land should be followed, but the Chinese law shouldn’t. That’s precisely what the Treaty was intended to prevent.
Well, briefly, no. What would stop them (assuming it would — as I discuss in the paper, some fear that the Chinese will simply withdraw from the treaty to make such a claim) is that what China would do in that hypothetical case would be precisely what the treaty was intended to prevent, while what we propose is not. We have an argument that our proposal is treaty compliant. They would not. I see no slippery slope here.