Masson-Zwaan told me trying to get around the 1967 treaty is "not the solution."
"Things have to be agreed on an international level," she said. "I don't think that the treaty has any kind of 'loophole.'"
The idea behind the Space Settlement Prize Act is that the Outer Space Treaty bars its signatories, including the United States, from asserting sovereignty over other worlds, but may not bar them from recognizing claims made by private parties. The act's backers note that a follow-on treaty, drawn up in 1979 and known as the Moon Treaty, specifically bans private property claims — and note that the United States is not a party to that particular pact.
Wouldn't that imply that the United States still has a free hand on private property claims? Masson-Zwaan says no. She says the private-property angle is addressed by the Outer Space Treaty, and merely reiterated in the later Moon Treaty. "It's often so in treaties," she said.
The key to her argument is that Article 2 of the 1967 treaty holds nations responsible for the extraterrestrial activities of their citizens. And it's not just her arguing that. This is the view of other legal experts, including TechFreedom's James Dunstan. (Masson-Zwaan said Dunstan's comments were "quite well worded.") What's more, it's been the stated view of the U.S. government. In 2003, a State Department official cited Article 2 in turning back a claim for parking and storage fees relating to NASA's NEAR Shoemaker spacecraft on the asteroid Eros.
Note that I addressed the Article II argument both in the Issue Analysis and in my rebuttal to its repetition. Also, while I didn't mention in the analysis the State Department opinion on the Eros case, it was only that -- an opinion of an official, and I noted that it was not at issue in the case, (as does Alan Boyle):
A later ruling in federal court rejected the claim on different grounds, saying that the claimant failed to show any property interest in Eros.
Thus despite all the opinions about it, it remains unlitigated and unadjudicated, in U.S. or other courts. Interestingly, in linking to the interview over the weekend, University of Tennessee law professor and the man who literally (co-)wrote the book on space law, Glenn Reynolds (aka Instapundit), succinctly weighs in on the current controversy, and disagrees:
I disagree with the thesis that because Article 2 of the Outer Space Treaty requires nations to supervise their nationals, it somehow bans private property. And I think that the later drafting of the failed Moon Treaty — which did explicitly ban private property — was an admission that the Outer Space Treaty didn’t. Furthermore, there’s precedent for the U.S. recognizing property rights in areas where it doesn’t, and can’t, claim sovereignty.
As the interview brings out, there are really two separate issues here. One is whether or not the treaty as written allows real-estate property rights off planet. The other is whether or not property rights are essential, or even desirable. Ms. Masson-Zwaan gives away the real game in this comment:
Masson-Zwaan acknowledges that the current treaty is not perfect. "More rules are needed," she said, "but I am also of the opinion that you do not need to create property rights." She points to the example of the Law of the Sea Treaty, which set up procedures for deep-sea mining licenses. (The Competitive Enterprise Institute, which commissioned this month's white paper on the Space Settlement Prize Act, has called the Law of the Sea Treaty "a bad deal for America.")
In other words, she disagrees not only with the thesis that the treaty allows them, but that they are useful or necessary. Unfortunately for her example, as I point out in the Issue Analysis, the Law of the Sea Treaty (LOTS) has effectively prevented any significant seabed mining in international waters (perhaps achieving its goal?). And it would be a safe bet that she is a fan of the Moon Treaty, which was modeled on LOTS, particularly given her tweet a few weeks ago, with seeming approval (at least judging by the triple exclamation marks), that the German delegation to the Committee on the Peaceful Uses of Outer Space is considering becoming the fifteenth (as usual, non-space-faring) nation to sign on to it. I'd be curious to know whether or not she thinks that property rights are only unimportant throughout the non-terrestrial universe and on the sea floor, or if it's true on the dryer portions of this planet as well.
Perhaps I'll ask her. The answer could be revealing. And sadly, it may be an opinion shared by a large part of the international space law community. But don't call them socialist. Unless, of course, they like that.