Rethinking Terra Nullius and Property Law in Space

Abstract

This is a draft version of the paper and will be expanded on in due course. With a new era dawning with regard to access to space and an increase in the number of nations capable of reaching and exploiting space; the field of space law as a whole needs to be re-evaluated. One such area where current legal thinking needs to be examined is with regard to the property rights to objects in space. While it was sufficient in the past for governments to frown upon the institutions of ownership in outer space and leave many space-related issues at an impasse, one would need to re-examine the current body of space-law and related international instruments against the light of the ability of developing countries and now private enterprises’ ability to partake in and commercially exploit space travel. This paper aims to investigate what types of property rights would or should be available to space-faring nations and individuals, as well as how these rights could be acquired. In order to know what property rights will be applicable, one also needs to re-define the objects to which those rights can be acquired. Characteristics such as the impersonality; tangibility, independence, susceptibility to control and the usefulness and value for mankind will once again be of crucial importance when it is necessary to determine if an object in space can be classified as an object with regard to which one can have property rights. When, for example, one is able to start colonizing and commercially exploiting heavenly bodies such as the Moon, Mars or even asteroids; it is only natural that people and governments will want to demarcate and protect their colonized territories and make use of the inherent ability to exclude others by means of property law to protect their investments and interests. These issues as they relate to sovereignty, jurisdiction and international law will be discussed and certain recommendations made as to how some of the problematical property law issues could be addressed for the benefit of all of man-kind. This will be discussed against the background of objects that are deemed to be res nullius (things belonging to nobody) as well as the theory of terra nullius (land belonging to nobody). A recommendation is made that private ownership of (sections of) celestial bodies should be recognised in certain instances.