Commentary | The Time is Not Ripe To Tackle Space Property Rights

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Bigelow Aerospace founder Robert Bigelow raised eyebrows with an announcement pertaining to space property rights at a recent event in downtown Washington. 

The Nov. 12 event marked the presentation of a report prepared by Bigelow Aerospace for NASA that proposed the use of a model similar to the Commercial Orbital Transportation Services program — which led to the development of the Space Exploration Technologies Corp. (SpaceX) Dragon and the Orbital Sciences Corp. Cygnus freighter for international space station resupply missions — to develop human spaceflight capabilities for beyond low Earth orbit, including activities around and on the surface of the Moon. 

As part of his presentation, Bigelow announced that by the end of the year Bigelow Aerospace would be submitting an application for a policy review to the U.S. Federal Aviation Administration Office of Commercial Space Transportation for a review of the United States’ stance on outer space private property rights. The announcement was met with skepticism from many in the space community.

Outer space property rights are the holy grail of private space ambitions, but they are also the most contentious issue in the arena of international law and policy. The current state of international space law and geopolitics makes space property rights an iffy proposition at best. Yet many in the space advocacy community assert that the time is right to create space property rights. They inaccurately analogize the exploration and exploitation of outer space with the Wild West in the 19th century. Outer space is anything but the Wild West, nor is outer space analogous to the age of discovery that brought Europeans to the New World. 

Outer space property rights advocates who make this analogy disregard the present political and legal environment. The geopolitical environment is different than it was in the 19th century or even in the age of exploration when the New World was colonized. The United States is no longer a single voice in the world and must abide by the current legal environment that it chose to join during the beginnings of space exploration. 

Given the legal and geopolitical realities, Bigelow’s decision to announce his push for recognition of outer space property rights is perplexing. The current legal and policy environment is not ready for a regime that would unilaterally grant private property rights in outer space, and any attempt by the United States at this juncture to create such an independent regime for its citizens would be opposed by other nations and would result in significant geopolitical backlash. Doubtless, the State Department will agree.

Bigelow’s efforts to seek a policy review for space property rights at this time could endanger other efforts to establish international recognition of private space property rights. Planetary Resources Inc., which announced in 2012 its intention to develop the technology and techniques for eventually harvesting resources from asteroids, has begun its own more subtle pursuit of establishing recognition of private space property rights through opening dialogue designed to cultivate an international environment that will be more receptive to the idea of private entities acquiring outer space property rights. However, Bigelow’s forthright approach to achieving the holy grail likely will create a geopolitical cloud of dissent that may poison and derail Planetary Resources’ approach.  

Bigelow has proved his acumen in developing technologies for commercial space applications. Nonetheless, he has undermined his credibility in the past when it comes to matters of international space law and policy, including his concerns about China’s future ambitions regarding the Moon. This latest foray appears to be another example of his weighing into an arena that is better left to those with the insight into the peculiarities of the playing field, and may incite the very scenario he has warned against. Rather than moving the issue of outer space property rights forward, by contributing to this arena in his own peculiar fashion, Bigelow is endangering the prospective harvest of outer space property rights by seeking to pick from the orchard far before the fruit has ripened. 

 

Michael J. Listner is an attorney licensed in New Hampshire. He is the founder and principal of Space Law and Policy Solutions and the current president and interim chief executive of the International Space Safety Foundation, where he also serves as vice president for legal affairs. The opinions are those of the author and do reflect the views of the International Space Safety Foundation.