Space Property Rights – Mining The Moon?
9 September 2014 by Leon Pascal
Although an excellent potential source of highly valuable minerals and resources, many blame the lack of space property rights for the lack of commercial success beyond our Earth’s orbit.
The current position is largely governed by The Outer Space Treaty of 1967 (‘the Treaty’), a treaty signed by over 90 countries around the world including the United Kingdom, the United States of America and Russia (by virtue of the former USSR’s ratification). The Treaty provides, inter alia, that outer space, including the moon and other celestial bodies, is not subject to appropriation either by means of use, occupation or otherwise, and that all areas of outer space and celestial bodies shall be free for exploration and use by all. The Treaty is applicable to both countries and private entities.
Whilst, perhaps understandably, there are a large number of people concerned about the perceived commercialisation of the moon, some enterprises insist that the rules need to be relaxed and that governments need to incentivise the development of the moon, treating it almost as the Earth’s eighth continent.
In a recent report prepared for NASA it was declared that ‘without property rights, any plan to engage the private sector in long-term beyond low Earth orbit activities will ultimately fail’. Supporters of space property rights comment that what is not required at this stage is the right to own plots of land on the moon, or to be able to buy or sell it to raise capital, but to extract, use and profit from extra-terrestrial resources without risk of interference from third parties.
The rights that are sought after are not dissimilar to the English property law rights that we are familiar with – easements and profits a prendre. Notwithstanding the apparent benefit of the similarity between the existing English property law and the proposed space property rights, the law relating to easements and profits a prendre is complex and the Law Commission’s 2008 consultation paper entitled ‘Easements, Covenants and Profits a Prendre’ suggested radical reform.
On this basis it would seem unlikely that English property law will provide a foundation for space property rights, at least until English property law has been heavily reformed.