In honor of yet another billionaire rocketing themselves into outer space using blood money, I've written a short summary of my recently published law review article, which argues that current international law forbids private companies from claiming ownership over space objects. In other words, I argue that billionaires cannot actually start putting dibs on lunar craters and Martian mountains for their low-g mansions. In essence, the argument is that private parties are also subject to the international agreements between states which declare that space is a global commons that belongs to humankind, not individual countries and not individual businesses.
International space law is grounded in the Outer Space Treaty, an agreement signed by more than a hundred nations. Drafted in the 1950s, the Outer Space Treaty’s animating principle is that space should be preserved as the “province of all [hu]mankind.” Based on both the text of the treaty as well as subsequent international agreements, this means that space is essentially a global commons, collectively owned by all humankind and to which no one may restrict access. This would make space analogous to a public park in that a group of people can make use of the space but not claim it permanently or prevent others from using it. This is already how countries who have signed the treaty regard space. For instance, when America landed on the moon, it did not seek to claim the surface as a colony.
Recall however, that this legal framework was established in the 50s before the era of private space corporations. At the time, nation states (and only a few) were capable of accessing space. Today however, concentration of wealth has created a class of billionaires who want to manifest destiny the galaxy. This rise of commercial private space corporations stresses the existing international space law framework because private corporations are not signatories to international treaties and are not widely understood to be directly bound by the responsibilities and duties within them. This interpretation is dangerous because it would allow private corporations to be irresponsible and destructive in space, as they have been on earth, but it is also incorrect.
Unlike the domestic law of a nation, international law is usually understood to only apply to those parties who explicitly agree to be bound by it, for instance by signing a treaty. One exception to this rule is customary international law, which are universal and apply to all members of the community of states, including new states who have never formally signed onto an agreement. In entering space, private corporations enter a vacuum of sovereignty, much like new states enter a vacuum of sovereignty when they first come into existence. Therefore, just as new states are obliged to follow certain international laws, the legal responsibility to maintain space as a global commons also attaches to private corporations who enter space.
The upshot of all this, legally speaking, is that corporations would not be able to claim wide swaths of space or half the moon as their private property, as they are dying to do. Taking this legal stance is important because practice and usage shape the law. Though I argue that international space law, as it currently stands, forbids private corporations from claiming the moon for their own, this can change. If companies begin to pitch tents branded with their logo on Mars and start to make plans to divert the orbit of mineral rich asteroids, they will erode the existing international law framework, bend it in their favor.
Happy to provide the full law review article to anyone who wants a copy, just find me on twitter. The professor whose class I originally wrote the paper for was “not convinced,” but you can read it for yourself and decide.
Here's a link to the article on law review site: http://djilp.org/filling-the-vacuum-adapting-international-space-law-to-meet-the-pressures-created-by-private-space-enterprises/