New Space Property Rights Criticism

Over at the Space and Cyberlaw blog, Eric Dawson takes issue with my issue analysis on space property rights:

Foremost, I think the terminology used by Mr. Simberg is disingenuous. The proposed legislation, as I read it, does not create a property right at all. By describing it as such, I believe Mr. Simberg is concealing some of the more important areas of the discussion. A property right has no value if it does not protect your interests from third parties. To grant a property right, a nation must have sovereignty or control over the property in question, otherwise the grant is meaningless. Assuming that the legislation is not intended to be meaningless, what would actually happen under this proposal is that the United States would essentially promise not to take military or other action to remove a private party from a portion of a celestial body. Ignoring space law for the moment, and acknowledging that I am not a Constitutional scholar, I have serious concerns that such a piece of legislation would be constitutional. This is because it appears to be an attempt to limit the President’s commander-in-chief and foreign affairs powers.

Setting aside what I think is an unfair accusation of disingenuity, this is simply wrong. The legislation makes no “promise” to not take military or other action. It simply refuses to promise to do so. As I note in the paper, how the U.S. government would respond to a transgression against a recognized property owner, or whether it would, is completely unspecified by the proposed legislation — it would be a political decision taken at the time of the encroachment. For the government to recognize the right of an owner to lunar real estate is no more an “appropriation” or declaration of sovereignty than is our recognition of Israel or Taiwan’s right to exist. Surely Mr. Dawson isn’t saying that our stance toward those two nations represents a declaration of sovereignty over them? He goes on to repeat the (in my opinion of course) flawed argument that the combination of Articles II and VI create a de facto violation of the Outer Space Treaty by an individual property claim:

The OST prohibits national appropriation of outer space and celestial bodies through any means. Remember also that nations are responsible for the space activities of their nationals. If we accept that the US would not actually be granting a property right, but rather refraining from enforcing the provisions of the OST against appropriation, then it couldn’t really be accused of appropriation itself unless the private party were its own citizen (I’ll get back to this issue in a bit). There are no provisions of the OST that require a State Party to take actions enforcing the Treaty. If China were to claim the entirety of the moon tomorrow, the US would not be required to respond. That is a political decision. However, I believe that passing a law stating that the US would systematically ignore repeated violations of the Treaty’s provisions would very much go against the object and purpose of the OST. All signatories to a treaty have the minimal obligation of not violating a treaty’s object and purpose.

Again, there is confusion here. The legislation does not provide a way for the the U.S. to “grant” a property right — it cannot do so without a sovereignty claim, which would be a treaty violation. It simply requires that such a right be recognized by the U.S. government. And it doesn’t require that the U.S. “systematically ignore repeated violations of the Treaty’s provisions,” because there is nothing in the treaty that prohibits private claims — only national ones. It is in fact possible for citizens of a States Party to the treaty to do things that the States Party itself cannot. This is elaborated upon in a long blog post by the original author of the proposed legislation.

Mr. Dawson also has a question:

I believe that Mr. Simberg, subsequent to publishing his white paper, responded to my next point, but I do not remember the specifics of his answer. Basically, there is the issue that while the US could choose to ignore the actions of foreign private companies, it can not do so for its domestic entities. This is because, as mentioned above, States are responsible for their nationals and such private claims to a property right would constitute appropriation in violation of the OST. I believe Mr. Simberg responded that while such an interpretation is possible under the treaty, such an outcome would be preposterous. [If anyone has a citation/quotation for any of this response your comments would be appreciated.] However, that was preposterous in the idea that the US could grant a property right to foreigners but not its own citizens. But since the US wouldn’t actually be granting a property right at all, it is not preposterous that the US could ignore violations by other nations, but not those committed by its own nationals.

I think that he’s referring to this post in this very venue from April 9, but the word I used was not “preposterous,” but “perverse”:

Now, of course, this does raise an issue that the paper doesn’t address. The argument is that because the recognition is independent of the nationality of the claimant that it is not an explicitly sovereign claim, but it could of course be argued that even if true, this means that the U.S. government could recognize claims of any country’s national but its own. But this result would be so perverse that only a space lawyer could believe it. [Emphasis in original]

I would stand by that assessment. Particularly since, as noted above, the U.S. is not “granting” a property right.

Finally, he expresses a concern similar to that of Jim Dunstan:

As difficult as renegotiation of parts of the OST may be, it is the proper way to reach a new agreement. By proceeding unilaterally in this manner the US risks placing itself at a severe disadvantage. If this legislation were implemented, it would essentially require the US to recognize the appropriation of portions of outer space by other nations. But there would be no reciprocal protection for American companies. If the US is recognizing all such claims by foreign private entities, then it would be in other nations’ best interests to bargain amongst one another to divvy up portions of outer space while challenging any attempts by US companies to do the same.

First of all, the legislation does not propose that this be done unilaterally — it explicitly calls for the State Department to negotiate with other nations to get agreements of reciprocity. And it would not at all “require” the U.S. to “recognize the appropriations of outer space by other nations.” In fact, it is just the opposite. The legislation is very clear about what the U.S. will recognize and under what conditions, and one of them is that it not be a national sovereign claim. I have to wonder if the critics of the proposed legislation have actually read it, or if they take the Eric Holder approach to legal analysis?

[Sunday afternoon update]

Mr. Dawson has responded:

I would say that the US’ position on Israel and Taiwan’s right to exist is a clear indication that the US recognizes those States’ sovereignty over their respective territories. In the same way, recognizing the property rights of a foreign company could be recognition of the sovereignty or appropriation of that land by the company’s State.

No. Recognizing the property rights of a foreign company (which may have multiple States Parties involved, per my example of a Manx company funded by the Emirates) is to recognize the sovereignty or appropriation by that entity, not by any State. The Treaty only forbids States Parties from doing so.

It is unclear to me how a right that has not been granted can be recognized.

And it is at least as unclear to me why a right must be “granted” to be recognized. Again, to use the Israel example, the U.S. did not “grant” Israel a right to exist, because it has no power to do so. Grants can only come from those who originally own the property granted. No one owns any property off planet, so no one can “grant” it. Nonetheless, it is possible to recognize someone else’s claim to such property. The proposed legislation would simply codify in U.S. (and hopefully other nations’) codes what conditions would apply for such recognition.

Section 9 of the proposed legislation certainly urges other nations to take similar actions. It even goes so far as to guarantee the protections of the law to countries that offer similar protections, through legislation or international agreement, to US citizens. However, there is nothing that would require that the country offer such protections. Therefore, the risk of the US ultimately proceeding unilaterally still exists. And yes, Section 3 limits applicability of the legislation to those companies and individuals that are not controlled by any sovereign State. This would not stop another State from arguing that the US’ recognition of the rights of one of its private companies constituted recognition by the US of that State’s sovereignty over the land in question. Such recognition, it could be argued, would be a necessary first step to recognizing a land right if the US was not purporting to grant the right itself. Given the sometimes vague nature of the outer space treaties, I believe it to be disadvantageous to provide this opportunity.

First, I would note that the language of the legislation is not cast in stone, and it is very unlikely to pass in its current form. If this is a legitimate concern, then the response should be to suggest different wording to remove such a “risk” of unilateral action, not to simply reject the entire concept. For instance, the legislation could explicitly state that it won’t go into force until some minimum number of other nations have agreed (preferably starting with the Anglosphere, as a way of extracting Australia from its misbegotten acquiescence to the Moon Treaty).

Second, I find the argument that we shouldn’t pass legislation because it might result in bad actors making bad-faith arguments quite weak — if one accepted it, one would never do anything on an international level, because the capacity of some states to do so (Iran, Russia, I’m looking at you) is infinite. They will create “opportunities” where they don’t exist, by simply being disingenuous (at best). One can never stop another State from “arguing” — it’s one of the things that States do, even when there is no basis for the argument. I find this particular argument against the legislation completely unconvincing.