Property Law

Westward (And Then Some) Expansion: One Theory of Property Rights on the Moon and Mars

Jordan Rude, MJLST Staffer

Recently a friend of mine received, for his birthday, a deed to one acre of land on Mars. That’s right—he is the proud owner of property located approximately 34 million miles from Earth. This is possible thanks to the efforts of various (and often interconnected) websites such as Buy Mars, Buy Planet Mars, Lunar Registry, and Lunar Land. While selling extraterrestrial property is not a recent development (see here and here), and there does not appear to be any recent lawsuits regarding this practice, these methods still deserve scrutiny. With the rapid advancement of technology in recent decades and increasing participation by private companies in space programs (SpaceX recently tested a Mars-capable rocket), human settlement on the Moon and Mars is becoming a possibility (albeit a distant one) within our lifetimes. At that point, property ownership will become an important and possibly contentious issue. For the millions of people who have bought land on the Moon and Mars, the question of whether their claims will be recognized in such a situation is a not insignificant one.

Some of these websites claim to have legal standing for their ownership of property on Mars. Consider Buy Mars (owned by Lunar Land). Under the heading “Lunar Land’s Legal Right To Offer Planet Mars Land,” the site makes reference to the U.N. Outer Space Treaty of 1967 as well as the tradition “dating back to early U.S. settlers” of staking a claim on surveyed land through the U.S. Office of Claim Registries. The Outer Space Treaty has been previously discussed by this blog (in a different context). Suffice it to say that this treaty prohibits countries from claiming ownership of land on Mars and other extraterrestrial property, but says nothing about individuals or corporations. Thus, the argument would be that Buy Mars, because it is not a sovereign nation, is not subject to the treaty specifically prohibiting claims of ownership on Mars.

Beyond the lack of a direct prohibition, Buy Mars also claims historical precedent as an affirmative justification. This reference to historical precedent is problematic for two reasons: first, the U.S. Office of Claim Registries does not exist, and likely never existed; and second, this is not an accurate statement of the process by which the West was settled. In fact, the federal government sold the land—first as townships and other large plots, and later in smaller, more affordable plots, before finally offering land for free under the Homestead Act of 1862 (see Michael C. Blumm & Kara Tebeau, Antimonopoly in American Public Land Law, 28 Geo. Envtl. L. Rev. 155, 165–71 (Winter 2016)). That is, the federal government owned the land it sold to speculators and other settlers (though this ownership came more or less from the government declaring it to be so, not dissimilar to what Buy Mars has done). So, because the U.S. government does not own land on Mars that it could sell to Buy Mars (to then sell to us), on its face the claimed historical precedent is not in fact proof of the legality of the process.

However, setting aside the flaws in Buy Mars’ formulation of the argument, let’s assume that the principles of westward expansion can be applied to property on Mars—would this type of claim survive a legal challenge?

Most likely it would not. Construing the westward expansion analogy narrowly, the U.S. government would have to first own land on Mars and then distribute it to corporations like Lunar Land or individuals. This is clearly prohibited by the Outer Space Treaty. That being said, if a company like SpaceX lands on Mars, the Outer Space Treaty would potentially not restrict its ability to claim land. At that point, it is unclear what the legal policies governing ownership would be. In that situation, a process loosely similar to westward expansion could be utilized, wherein a larger entity (in this case a large company) distributes land to newcomers. The key difference between the Buy Mars argument and SpaceX landing on Mars would be the latter company’s physical presence on the planet—an important aspect of making such property claims and the most likely way to get around the Outer Space Treaty. This could be extremely lucrative for SpaceX but problematic for those who have already purchased land on Mars. Ultimately, the websites currently offering land on the Moon or Mars do not have legal standing to do so, and any person who bought such land is unlikely to find legal protections should the need arise. The law in this field is very uncertain, if it exists at all, and the day may come where a true answer is needed.

Of course, the legal implications of this process should not deter you from investing in extraterrestrial property for the fun of it. My friend’s deed comes from Buy Planet Mars, whose website makes quite clear, in the FAQ section, that the deed is “a novel gift and for entertainment purposes only.”

Geostationary Earth Orbit: Property for the Space Age

Ian Blodger, MJLST Note & Comment Editor

The past several years have seen great advances in space based technology and exploration. Most recently, scientists used the LIGO to prove the existence of gravitational waves. While the two detectors used to make this discovery were located in the United States, scientists have plans to deploy more advanced and precise measuring tools in space, likely in Geostationary Earth Orbit (GEO). GEO’s unique properties make it a perfect choice for this and similar satellite technology. Essentially, GEO is an orbital path around Earth where satellites remain in a fixed position above a specific point on Earth. This aspect of GEO makes it easier for the satellite to communicate with Earth based operations because the satellite operator does not need tracking technology to follow the satellite, but can simply build a stationary receiver. One additional result of GEO is that satellites that enter this orbital path remain there forever unless they are pushed out of orbit somehow. This is distinct from satellites in Low Earth Orbit (LEO) where satellites are not fixed above one point on Earth and remain for only a few years. This gives GEO satellites an additional advantage of reducing costs over the long term because operators do not need to replace them with the same frequency as LEO satellites. With the special conditions and long term cost savings of GEO, it is no wonder that more and more satellite operators and manufacturers are interested in placing a satellite in GEO.

One issue that will become more important as satellite operators continue to utilize GEO’s special attributes is the issue of property rights. Currently, satellite operators who place a satellite in GEO have no property right over that orbital position. In my Note “Reclassifying Geostationary Earth Orbit as Private Property: Why Natural Law and Utilitarian Theories of Property Demand Privatization,” recently published in Volume 17 of the University of Minnesota Journal of Law Science & Technology, I argue that this lack of a defined property right is both contrary to the underlying theoretical assumptions of various space treaties, and that granting a property right would be a good idea from a utilitarian perspective.

Allowing individuals to obtain property rights over a region of space makes sense from a natural law perspective. The various space treaties cite natural law for the proposition that an individual cannot own space, likening the vast emptiness to the sea. Under traditional natural law theory, the sea is not subject to homesteading and other means of property acquisition because it is so large and is not capable of being contained. However, Grotius, the natural law philosopher most responsible for this theory argued that when an area of the sea was slightly separated and could be wholly controlled, then property rights could exist.

While space generally is more like the uncontrollable sea, GEO is more akin to small inlets capable of control. First, GEO only comprises a small area of space; if satellites are too close to Earth or too far, they will not maintain their synchronicity with the planet’s rotation. Second, objects placed in this orbit will remain in a fixed position relative to the Earth. This is different than a ship on top of the ocean that moves with the waves and tides relative to shore. Finally, individuals who place satellites in orbit expend large amounts of money and energy to do so, and therefore meet the labor requirement expressed by both Grotius and Locke’s theories of property.

Granting property rights over certain portions of GEO makes sense from a utilitarian approach as well. This approach to property looks to see whether leaving things in common causes more harm than benefits. In this case, the tragedy of the commons has caused large costs and dangers that could be rectified by allowing GEO property rights. First, without property rights, individuals have little incentive to ensure their satellites leave orbit after failure. Under the current approach to GEO, satellite operators have little incentive to move their satellites to a graveyard orbit following failure because they can obtain another, similar, GEO position and do not have to worry about selling the inhabited position at a loss. With property rights over these positions, there would be a great incentive to move the satellite to a graveyard orbit to secure the best price for the position. Second, because no satellite operator has a property right which is harmed by space debris in the area, manufacturers create a race to the bottom in terms of quality parts, which in turn results in malfunctions and potentially more debris in the area. This leads to debris defense costs, such as special plating to deflect debris, that add up over the long term. Thus, a utilitarian approach to property yields the same result as the natural law: satellite operators should obtain a property right over GEO.

This is an interesting and fast moving area of law, and the decisions we make now can have great impacts on the future of space operations, especially considering debris in GEO will remain there forever.