New Space Property Rights Criticism

by Rand Simberg on June 1, 2012 · 12 comments

in Property Rights, Space

Over at the Space and Cyberlaw blog, Eric Dawson takes issue with my issue analysis on space property rights:

Foremost, I think the terminology used by Mr. Simberg is disingenuous. The proposed legislation, as I read it, does not create a property right at all. By describing it as such, I believe Mr. Simberg is concealing some of the more important areas of the discussion. A property right has no value if it does not protect your interests from third parties. To grant a property right, a nation must have sovereignty or control over the property in question, otherwise the grant is meaningless. Assuming that the legislation is not intended to be meaningless, what would actually happen under this proposal is that the United States would essentially promise not to take military or other action to remove a private party from a portion of a celestial body. Ignoring space law for the moment, and acknowledging that I am not a Constitutional scholar, I have serious concerns that such a piece of legislation would be constitutional. This is because it appears to be an attempt to limit the President’s commander-in-chief and foreign affairs powers.

Setting aside what I think is an unfair accusation of disingenuity, this is simply wrong. The legislation makes no “promise” to not take military or other action. It simply refuses to promise to do so. As I note in the paper, how the U.S. government would respond to a transgression against a recognized property owner, or whether it would, is completely unspecified by the proposed legislation — it would be a political decision taken at the time of the encroachment. For the government to recognize the right of an owner to lunar real estate is no more an “appropriation” or declaration of sovereignty than is our recognition of Israel or Taiwan’s right to exist. Surely Mr. Dawson isn’t saying that our stance toward those two nations represents a declaration of sovereignty over them? He goes on to repeat the (in my opinion of course) flawed argument that the combination of Articles II and VI create a de facto violation of the Outer Space Treaty by an individual property claim:

The OST prohibits national appropriation of outer space and celestial bodies through any means. Remember also that nations are responsible for the space activities of their nationals. If we accept that the US would not actually be granting a property right, but rather refraining from enforcing the provisions of the OST against appropriation, then it couldn’t really be accused of appropriation itself unless the private party were its own citizen (I’ll get back to this issue in a bit). There are no provisions of the OST that require a State Party to take actions enforcing the Treaty. If China were to claim the entirety of the moon tomorrow, the US would not be required to respond. That is a political decision. However, I believe that passing a law stating that the US would systematically ignore repeated violations of the Treaty’s provisions would very much go against the object and purpose of the OST. All signatories to a treaty have the minimal obligation of not violating a treaty’s object and purpose.

Again, there is confusion here. The legislation does not provide a way for the the U.S. to “grant” a property right — it cannot do so without a sovereignty claim, which would be a treaty violation. It simply requires that such a right be recognized by the U.S. government. And it doesn’t require that the U.S. “systematically ignore repeated violations of the Treaty’s provisions,” because there is nothing in the treaty that prohibits private claims — only national ones. It is in fact possible for citizens of a States Party to the treaty to do things that the States Party itself cannot. This is elaborated upon in a long blog post by the original author of the proposed legislation.

Mr. Dawson also has a question:

I believe that Mr. Simberg, subsequent to publishing his white paper, responded to my next point, but I do not remember the specifics of his answer. Basically, there is the issue that while the US could choose to ignore the actions of foreign private companies, it can not do so for its domestic entities. This is because, as mentioned above, States are responsible for their nationals and such private claims to a property right would constitute appropriation in violation of the OST. I believe Mr. Simberg responded that while such an interpretation is possible under the treaty, such an outcome would be preposterous. [If anyone has a citation/quotation for any of this response your comments would be appreciated.] However, that was preposterous in the idea that the US could grant a property right to foreigners but not its own citizens. But since the US wouldn’t actually be granting a property right at all, it is not preposterous that the US could ignore violations by other nations, but not those committed by its own nationals.

I think that he’s referring to this post in this very venue from April 9, but the word I used was not “preposterous,” but “perverse”:

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. [Emphasis in original]

I would stand by that assessment. Particularly since, as noted above, the U.S. is not “granting” a property right.

Finally, he expresses a concern similar to that of Jim Dunstan:

As difficult as renegotiation of parts of the OST may be, it is the proper way to reach a new agreement. By proceeding unilaterally in this manner the US risks placing itself at a severe disadvantage. If this legislation were implemented, it would essentially require the US to recognize the appropriation of portions of outer space by other nations. But there would be no reciprocal protection for American companies. If the US is recognizing all such claims by foreign private entities, then it would be in other nations’ best interests to bargain amongst one another to divvy up portions of outer space while challenging any attempts by US companies to do the same.

First of all, the legislation does not propose that this be done unilaterally — it explicitly calls for the State Department to negotiate with other nations to get agreements of reciprocity. And it would not at all “require” the U.S. to “recognize the appropriations of outer space by other nations.” In fact, it is just the opposite. The legislation is very clear about what the U.S. will recognize and under what conditions, and one of them is that it not be a national sovereign claim. I have to wonder if the critics of the proposed legislation have actually read it, or if they take the Eric Holder approach to legal analysis?

[Sunday afternoon update]

Mr. Dawson has responded:

I would say that the US’ position on Israel and Taiwan’s right to exist is a clear indication that the US recognizes those States’ sovereignty over their respective territories. In the same way, recognizing the property rights of a foreign company could be recognition of the sovereignty or appropriation of that land by the company’s State.

No. Recognizing the property rights of a foreign company (which may have multiple States Parties involved, per my example of a Manx company funded by the Emirates) is to recognize the sovereignty or appropriation by that entity, not by any State. The Treaty only forbids States Parties from doing so.

It is unclear to me how a right that has not been granted can be recognized.

And it is at least as unclear to me why a right must be “granted” to be recognized. Again, to use the Israel example, the U.S. did not “grant” Israel a right to exist, because it has no power to do so. Grants can only come from those who originally own the property granted. No one owns any property off planet, so no one can “grant” it. Nonetheless, it is possible to recognize someone else’s claim to such property. The proposed legislation would simply codify in U.S. (and hopefully other nations’) codes what conditions would apply for such recognition.

Section 9 of the proposed legislation certainly urges other nations to take similar actions. It even goes so far as to guarantee the protections of the law to countries that offer similar protections, through legislation or international agreement, to US citizens. However, there is nothing that would require that the country offer such protections. Therefore, the risk of the US ultimately proceeding unilaterally still exists. And yes, Section 3 limits applicability of the legislation to those companies and individuals that are not controlled by any sovereign State. This would not stop another State from arguing that the US’ recognition of the rights of one of its private companies constituted recognition by the US of that State’s sovereignty over the land in question. Such recognition, it could be argued, would be a necessary first step to recognizing a land right if the US was not purporting to grant the right itself. Given the sometimes vague nature of the outer space treaties, I believe it to be disadvantageous to provide this opportunity.

First, I would note that the language of the legislation is not cast in stone, and it is very unlikely to pass in its current form. If this is a legitimate concern, then the response should be to suggest different wording to remove such a “risk” of unilateral action, not to simply reject the entire concept. For instance, the legislation could explicitly state that it won’t go into force until some minimum number of other nations have agreed (preferably starting with the Anglosphere, as a way of extracting Australia from its misbegotten acquiescence to the Moon Treaty).

Second, I find the argument that we shouldn’t pass legislation because it might result in bad actors making bad-faith arguments quite weak — if one accepted it, one would never do anything on an international level, because the capacity of some states to do so (Iran, Russia, I’m looking at you) is infinite. They will create “opportunities” where they don’t exist, by simply being disingenuous (at best). One can never stop another State from “arguing” — it’s one of the things that States do, even when there is no basis for the argument. I find this particular argument against the legislation completely unconvincing.

George Turner June 1, 2012 at 7:23 pm

Eric Dawson argues:

Basically, there is the issue that while the US could choose to ignore the actions of foreign private companies, it can not do so for its domestic entities. This is because, as mentioned above, States are responsible for their nationals and such private claims to a property right would constitute appropriation in violation of the OST.

A private person buying property elsewhere does not involve a claim of national sovereignty, just as a US citizen can buy a piece of property in Europe without even the faintest notion that the land somehow becomes part of the US. The US government can officially recognize that the piece of foreign property is owned by a US citizen (and you know the IRS is going to recognize it seven ways to Sunday) without having the slightest implication that the property is in any way US territory.

I’m sure it is implicit in international law that although other countries agree not to carve up and claim bits of European country X (France or Monaco for example), it doesn’t mean that foreign nationals can’t buy a house there. His strict reading of the OST’s provisions would be similar to arguing that article II of the UN charter (which prohibits members from using force against the territorial integrity of another state) actually prohibits Madonna from using the cops to evict Guy Ritchie from her English castle.

Mrs. Holder June 1, 2012 at 8:33 pm

WRT “take the Eric Holder approach to legal analysis?”

Once again Mr. Simberg can’t pass on a chance to bash democrats and the Obama Administration.

ken anthony June 2, 2012 at 1:06 pm

The OST prohibits national appropriation of outer space and celestial bodies through any means.

Clearly the citizens of a nation can own property that is not part of that nation. What this provision really says is the state can not tax the property (by any name) since that would be appropriation by a means.

Warren Platts June 4, 2012 at 8:45 pm

In fact, a nation can own property that is not part of that nation.

Eric Dawson June 2, 2012 at 3:13 pm

Thank you, both for mentioning my blog when it first started at transterrestrial and taking the time to respond to my post here. As a young lawyer trying to start out in the space field, I appreciate it.

George Turner June 3, 2012 at 8:49 pm

Mr. Dawson, in your response to Rand Simberg’s response you say

It is unclear to me how a right that has not been granted can be recognized.

The Bill of Rights and other founding documents are an example of recognizing rights without granting them, since the rights are considered pre-existing, coming from God or nature and completely beyond the state’s power to grant. All the state does is promise to recognize those pre-existing rights.

This still applies today. For example, the state didn’t bother to grant you the right to have a blog on the Internet, but the state will happily adjudicate your infringed blogging rights when you sue your hosting service for breach of contract.

Bartosz Malinowski June 4, 2012 at 2:52 am

Dear Mr. Simberg,
speaking from the non-US perapective, I suppose the most useful thing is to demand Your (US) government to start multilateral negotiations concerning a massive amendment to OST. That shouldn’t be that hard, after it becomes economically relevant.
Unilateral actions or bilateral agreements shall be ignored at the best. Still, who would be willing to enter into such bilateral agreement with the US?
Best regards,
Bartosz Malinowski, PL

Mike Lorrey June 4, 2012 at 11:05 am

Dawson is one of these lefties that thinks that your rights are actually privileges granted to you by government, and not preexisting properties of your existence as a sentient being which the government is merely recognising and in some cases at least, restrained against interfering with. Furthermore, given the 9th and 10th amendment, I find any claim that the outer space property rights of any American citizen to be void is unconstitutional on its face.

Bartosz Malinowski June 4, 2012 at 4:50 pm

“is to recognize the sovereignty [...] by that entity”

Sovereignty should probably refer to “imperium” (administrative and political authority) and not to “dominium” (private law ownership). State authority could have both, or just the “imperium”, or only “dominium” if it owns an area in a foreign country. Private entities do not have any sovereignty, and usually do not even claim to have it.

“For the government to recognize the right of an owner to lunar real estate is no more an “appropriation” or declaration of sovereignty than is our recognition of Israel or Taiwan’s right to exist.”

Recognition by the US of Taiwan and Israel is an action in the area of international law. Taiwan or Israel do have their own sovereignty and are legally equal to the US and legally do not need any action from the US to exist, not even any recognition.

This is completely different from recognition of a private entity’s “right”, because by recognizing that a private entity owns an area on the Moon, US would in fact declare that substantive law rules unilaterally imposed by its legislative body can result in someone becoming an owner. Whatever you all will say, no one outside of US will accept this way of appropriation, and there will be no bilateral agreements with any country aligned with the EU/EFTA, Russia or China. Also, none will accept actions against its citizens based on any US-reognized claims, be it by US govt or by its citizens. No foreign court will probably accept these claims. How comfortable it would be for a serious international corporation?

This is because of Article I of OST: “[...] Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.”

So, any unilateral claims recognition can be either contrary to OST, or amount to rather useless registration of a de facto possessing by someone.

Example of Planetary Resources clearly shows that any unilateral claims recognition or lack thereof would not influence making business by Planetary Resources: they can go and mine whatever they wish, even now there is nothing in OST that prohibits them to limitlessly use outer space.

“one of these lefties that thinks that your rights are actually privileges granted to you by government”

If you find any books concerning history of the institution of property in medieval and modern Europe, you could as well call him a monarchist.

As a non-leftist (even though I am from Europe) I’d tell you he is right: it is only up to you to physically take something into your de facto possession and it is only up to you claim that the thing is yours. But it depends upon the state authority to make others think the same way and coerce them not to violate your possession, or even ownership. Where does your right begin if there is no community of people to defend it, and if everyone ignores it? A right is anything that other people allow yo to have. You are not a lonely island.

Best Regards,
Bartosz Malinowski, PL

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