Space Tuna and Property Rights
My space law brain hurts thinking about NASA's moon rock purchase announcement
This is about NASA Administrator Jim Bridenstine’s announcement from his keynote at the SWF Space Sustainability Summit 2020 (and its sister blogpost here).
This one’s a rapid-fire post because the next talk is in 20 minutes so I can’t explain in detail the background, but here’s everything in a nutshell.
Administrator Bridenstine just announced that NASA will purchase lunar regolith from a commercial provider as an example of how private property rights can be granted in space without constituting a national appropriation that would violate Art II of the Outer Space Treaty (OST). The analogy he’s used is that of tuna fishing in international waters.
Much like with fishing, if you go out, expend the effort and capital to get there, and then you take something back, it’s yours. It’s very Ayn Rand/Andrew Ryan-ey ‘entitling people to the sweat of their brow’ in concept. And I like the analogy. I think that we can see the bare bones of a substantial future framework on space property rights here.
That having been said, I think that tying the granting of rights to a threshold of ‘effort expended’ is hilariously dicey and could very well mess up all of space in the near future.
Finder’s Keepers
Okay so first off, Administrator Bridenstine’s approach works today because it takes a ton of effort to get to space in the first place. I should know. If you don’t know, for example because you’re not in the industry, let me be painfully clear: it’s still real hard.
To justify the sort of capital investment necessary for commercial space activity (because most of us don’t have USD$10 million just sitting around), most investors need a lot of legal certainty. This pertains to financing rules, corporate structure, etc., but in particular property rights.
Space property rights are therefore kind of an important issue.
So at this stage, if you expend the herculean amount of effort (plus the absolutely baller amount of cash) necessary to get to moon, mine out rare metals or ice, and somehow either bring them back or find someone to sell that stuff to in space, it would make sense that you should get to keep the proceeds. But you might have noticed that it’s currently a very all-or-nothing kind of arrangement. You either get to space and extract the resources, in which case they’re yours to keep, or you don’t and they aren’t.
What happens when it becomes easier to get to space?
The threshold is now essentially ‘finder’s keepers’ because it presupposes you’ve expended a lot of time, money, and effort to get to space. But at a certain point, the effort taken to get there might no longer justify an approach like that. Say, Starship becomes (very) operational and a lunar hotel or something is built - do you get to just walk outside in your spacesuit (because presumably you’d have one) and lay claim to whatever patch of dirt you stumble across?
Probably not, because you didn’t expend the same degree of ‘effort’. And herein lies the trifecta of corollary issues:
1) If we’re pegging rights to that aforementioned herculean amount of effort, that means only certain groups are entitled to space property rights - either the pioneers of the NewSpace age who got us up there in the first place, or the people with the means to push the envelope of space exploration and go further than everyone else (i.e. wealthy corporations);
2) Assuming we want to avoid the absurd situation where only the pioneers or rich people can lay claim to space resources (both of whom are probably one in the same, and will almost definitely cause material inequality to skyrocket), then we’ll need to establish some new system of property rights, meaning that we aren’t currently solving the space property issue - we’re just kicking the can down the road; and
3) When we’re discussing this new system of rights, we’re probably going to realise that the discussion is now even harder than before BECAUSE of the previous effort-based, tuna fishing-analogous regime.
Dworkin is going to be pissed when he hears about this by the way
This is a jurisprudential issue. Lawyers (particularly judges and jurists) generally like to say that the law is a consistent, flowing system whereby there are certain persistent ‘ground truths’. That’s why the Emancipation Proclamation can be made and found consistent with the original US Constitution, and isn’t considered to give rise to an entirely new legal system despite practically speaking representing a seachange in the way things are done. Ditto with other events like Brown v Board of Education. The only time you ever see an acknowledgement that the legal system has been completely torn down and replaced is in the event of (violent) political revolution.
So, let’s imagine a future where space travel is more commonplace and people can very easily pick up moon rocks. We now need a new system to confer property rights. So we say to ourselves, “Well, we gotta dig up some sort of principle which gave rise to the old system of property rights that will also be consistent with whatever new system we’re developing.”
From there, we’ll need to build off that principle and come up with a new regime that’s sensitive to the current context. And maybe some clever interpretivist in the future will be able to make sense of this proposed ‘effort-based’ regime and discern some consistent rule capable of extending into the future. I however am willing to wager that this whole thing is going to be be pretty hard to figure out, because this initial approach doesn’t make sense in law. How, then, are you going to interpret your way out of this in the future in a way that doesn’t fundamentally break the entire system of space law? It’s like building a house on sand - the whole damned thing is liable to come crashing down as soon as high tide arrives.
There’s also the issue of posterity. Consistency and predictability are key principles of the Rule of Law because they speak to the norm-guiding element of the law - they enable individuals to shape and moderate their conduct so that they know how to behave and can avoid getting sanctioned. Clarity is an important in this respect because you can’t predict what you can’t understand. Conversely, if your legal regimen is confusing and vague, it’s bound to at least cause some worry about what the future holds. Like I said earlier, one major benefit of providing property rights in space is that it incentivises investment and commercial activity, because commercial actors generally only do things if they know that there’s something to gain. Without property rights, there’s no guarantee that all their effort going up to mine resources won’t be for naught. However, if the looming shadow of a paradigm shift is lurking in the background of space law, how much certainty are you really generating?
By the way if you’re a Hart fan, have no fear because this whole thing causes problems for the Rule of Recognition too - just ask yourself who are the ‘authorities’ in this ‘system’ that are ‘recognising’ this ‘rule’. That each of these points in inverted commas can be spun off as their own arguments speaks to the amount of uncertainty being introduced here.
Now I’m just a guy who reads a little and sometimes thinks about stuff, but even I can imagine that this really isn’t setting up a good precedent for the future. Assurances that ‘nah it’ll be fine’ does not make for good law. I agree that we can’t keep hemming and hawing. At a certain point, we need to just suck it up and deal with it, because we can’t afford to have the space industry waiting for Godot.
All I’m saying is that we should really come up with answers to these questions. I’m not even saying ‘hang on let’s wait a second till we’ve thought it out’ because I’m excited to go too. I mean, it’s space mining. Come on. That’s awesome. What I am saying is that I acknowledge that we’re going, so we’d better get thinking and fast, because the future’s coming up and I’d really not get blindsided. This post is more about recognising that we’re headed for what could potentially be an enormous legal issue, and if we’re going to press ahead regardless, we’d better start thinking a few steps in advance. All of space mission planning is about foresight - why shouldn’t space law be too?
So where does that leave us? I really don’t know. My space law brain hurts trying to figure out a way through that makes sense and remains consistent with existing jurisprudence. At this stage, I mainly feel bad for whoever gets saddled with figuring this shit out when the space property regime inevitably changes. Sure hope they’ve got some strong coffee.
P.S. Full disclosure: I’m not a maritime law expert but I’m also pretty sure the whole tuna fishing regime is set out at law in UNCLOS or something, so while the analogy is attractive, it’s also seems completely irrelevant from a legal perspective.