So You’d Like to Buy an Asteroid: Property Law in Outer Space

okay so the topic uh I'm going to discuss is actually a little bit more specific than that one uh it's property law in space I want to talk about kind of two different groups of people who sort of have the uh the opposite problem okay hold the mic closer to your mouth thank you feel free to shout out tips like that uh especially if you've been drinking as much as she has uh okay um okay let me start uh let me start with this one um show of hands uh who used the sun today anybody you in the back you didn't okay that's fine some people won't raise their hands for anything uh okay if you use the sun uh let me guess you probably didn't pay anything for it right if you didn't this is who you have to thank for that okay and this is uh Maria aneles Duran L Del Soul the woman who owns the son now you're probably asking how does she get to own the son well here's here's how she did it all right she heard that there was a thing called the outer space treaty uh which governs what it says and we'll talk more about this it says that Nations can't own the moon or anything uh in space but she also heard that it did not apply to individuals it's a agreement between countries uh so this gave her an idea and she wrote up a deed and you can that's what she's got there and she went into town and she had it notorized and that's why she owns the sun now you're probably pissed that you didn't think of it first but it's too late she already has the deed now she got the idea from this guy uh who name is Dennis hope and for about 30 years he's run a thing called the lunar Embassy and you can see him here with a map of his moon and the red areas are uh where he sold plots of this he sells plots to people um the uh the value varies it's usually about 25 bucks uh and if you do that you will get an actual lunar deed like this this is the kind you get in uh in but it says that you have lawfully purchased uh a 1 acre or 5 acre plot depending on how much you paid uh and then it's all legal and you've got this document to prove it and he's been doing this for since about 1980 uh and there are some estimates that he's probably made several million dollars from from doing it uh now it's maybe he's joking maybe he's not joking but he's made a lot of money money from doing it anyway his his legal argument is exactly the same as uh Mrs Don's the outer space treaty doesn't apply to people uh and so what he did actually is write up a claim and he sent a letter to the United Nations to tell him that he was claiming the moon and when he didn't hear [Applause] back and here you can go there right now and as you can see he's branched out quite a bit um not only can you buy the moon you can get land on Mars Mercury um is it IO or EO EO thank you on EO if you want to I have no idea but you could buy a you can buy plots on this Venus um so he branched out from the Moon to uh to other planets all in the same legal Theory and this is my favorite if you got 250 Grand he'll sell you Pluto the whole thing and this is uh I like this a lot he's got one in [Applause] stock act now okay now he's not the only guy to do this either specifically with uh with the moon uh here's this is just one other example this is the an outfit called the lunar registry uh and you may not be able to read that but you can see all of these groups have they've got a page somewhere on their website that is devoted to whether this is legal or not and here what they're you all what their argument here is they're talking about the outer space Treaty of 1967 and they say they give the full title there um they say it's more commonly known as the 1967 Moon treaty and then down at the bottom they say later on the UN expanded on this with its Moon agreement that all un States uh uh have adopted and then it was ratified into law in the 1980s and that that's the legal framework today none of that is true uh the 19 there is a moon agreement but almost nobody has signed it uh it's certainly not binding international law there is a 1967 uh outer space treaty and this was uh entered into obviously a couple years before uh we landed on the moon it was not clear at the time who was going to be first and so both the Soviet Union and the US that's I'm paraphrasing a little bit here but this is basically what it says so the Articles uh uh both the the major space Powers had an interest in um setting out some rules so that whoever was first wouldn't claim the whole thing and so this is these are just I'll come back to a couple of these but this is sort of a summary of what it says uh space For All Mankind Nations uh cannot appropriate things for themselves uh No Stealing spaceships is a paraphrase of the principle that if you launch something into space if a country launches something into space um you have jurisdiction over what happens in that that spaceship that's so um and you're supposed to return spaceships to others so this is this is basically what it says and it lays out some general ground rules okay and obviously the countries in red still matter they just don't matter really to to space travel so almost all countries uh have signed the outer space treaty there is a moon agreement that virtually nobody has signed so I'm not going to talk about that okay so there are uh there is this treaty out there that applies to that was agreed to between the space powers and almost every other country uh in the world has signed it and it has those Provisions about uh sort of hands-off celestial bodies right so here's the thought process of Mr donon and Dennis hope and everybody else who is selling Deeds to outer space property the outer space treaty does not apply to me debatable premise and therefore conclusion I can point at things in the sky and say that I own them uh that I don't want to get I I deliberately I'm trying not to get to Technical and legal terms here but we do have a term for that uh that we use in the profession it's complete there a term that you will want to uh it's very comes really comes in handy uh these days so you'll want to remember it tell them a lawyer I told you to use it okay so um set aside this treaty let's say it doesn't apply to them you don't just get to Point at things and say that you own them okay how do you get a property right in something does anybody here own something anybody you what do you own you what a house you own a house how'd you get it you bought it how'd they get it you have no idea are you sure you own it okay so you could buy something what's another way you could get a property right in something you could inherit it yeah that's true anything else you could adverse possess it uh there aren't supposed to be other lawyers here tonight but okay anything else you could lie is that you could lie you could buy it right okay okay there's there's several different ways um you came up with some of them I like uh I just happened to find this this picture today I like this a lot because it's it's true either way right okay so you might own something because uh the thing is you this is uh uh this is sort of we're going back to John Lock sort of original principles here most of us would agree that we own our own bodies uh you know some people don't agree with that but uh that's generally generally agreed or you made it and this is part of John Lock's theory of of Labor um basically saying you know we agree we own ourselves we own our labor if you mix your labor with something and he's typically thinking about uh agriculture you own not just what you create but also the the land because you've mixed your labor with it okay doesn't really work for a fisherman but that's the theory uh you bought it uh nobody nobody yelled this one out I'm glad but you killed the previous owner and took it the ride of Conquest is well established unfortunately in history there's actually a Supreme Court decision from uh the 1820s I think that had to do with um with this basically it was avoided the question as you can expect but that's one way to get it uh you found it right at Discovery but the most important one is uh you're on it you possess it you possess it or uh you occupy it so uh you know think about it this way and again we're trying to go back to First principles here if there are there are no laws if this treaty or whatever doesn't apply where does it come from so let's say you're floating around in the Pacific and you come across this island uh it looks nice you decide you'd like to live there so you uh you move you you do whatever you do um you live on it for a while one day you go swimming okay uh then you come back and there's a somebody on your Island so now maybe you can agree to share it more likely knowing people he's going to say don't even don't even get out of the water because uh no trespassing and you're going to say what I was here first I was here first that's what you say and that's really it's a very fundamental principle of where property rights come from you might have heard uh prop possession is 9/10 of the law it's just very fundamental that you were there first and you're there at the time or you can prove you were there first uh you have a property right that other people will recognize and uh I don't know if uh in the sources that they asked us to put together for the these things I I put in an article on evolutionary theory and um and the origin of property rights and it's uh I'm oversimplifying it but basically it says that the same kind of thing happens in nature that biologists will say that um the rule in nature is the resident if there's a territorial dispute the resident always wins and uh evolutionary theorists have worked this out and basically it comes down to uh um if you have say you have a population that's uh you've got Hawks that are very aggressive about uh seeking out territory and you've got doves that don't that don't want to fight at all you don't end up with a population that's all hawks you end up with a kind of hybrid population in between where animals are uh they tend to defend or protect what they have but they tend to then respect what their neighbors have and it has to do with the you know the risk of being injured in a fight uh not being worth the gains as long as there's uh relatively speaking there's enough to go around so this sort of territorial uh property rights issue is you even see in the animal kingdom and that article is interesting if you if you were interested in the topic because it talks about how this might have happened with you know uh with early humans or in uh a situation where there no no laws the first people to a a location so it may be that fundamental just to say I was here first okay which is why it's so dumb to claim that you could own the sun right you can't I now hopefully somebody's going to say you could do you could go at night but you can't go to the sun I thought that was too obvious a joke to tell um you can't go to the sun you can't fence off pieces of it you can't exclude other people from it it just makes no sense um for Lan D soul to to say that she owns the son now she actually um she is modeling her thing here after Dennis hope in the lunar Embassy and she actually uh was trying to sell plots of land on the sun on eBay uh this is just last year eBay kicked her off because they said um they have a policy against selling intangible rights I guess so they kicked her off last I heard she was challenging that in a Spanish court so she's really going to the mat on this stuff uh she's a complete lunatic it just makes no sense here so it makes a but it it does make some sense in the context of uh asteroid mining or traveling to other places because you could and assuming you could overcome the technical problems you could actually go there and sort of plant your flag you can occupy it you can uh do things with it stake your claim and so it's not uh it's not crazy in this sense now they're a long way from doing it but it's not it's not crazy they actually have um kind of the opposite problem it's because it's clear that if they could get to this property stake their claim they they might have a claim that other people would recognize just based on kind of common law principles the issue that they've got though is uh concerns about whether the outer space treaty in fact applies to them so that's uh that's what the rest of this is about kind of the opposite problem uh I apologize for the legal text here but we have to do uh some of it um this is the first article of the outer space treaty I was talking about before and you can see it says uh the exploration and use of outer space including the moon and other celestial bodies that's how it's defined uh shall be for everybody um free for explor exploration and use by all states so it's pretty General uh general statement but that's the very first article the second one is the most important one it says outer space including the moon and other celestial bodies they say that every single time I've spared you that that um is not subject to National appropriation by sovereignty by using it by occupation any of the means that we talked about um off limits and then there is an article further down that talks about how States uh I mean it recognizes the fact that there will be National activities by um governments or by non-governmental entities and that states have responsibility for what their Nationals do uh and states have to ensure that National activities are carried out in Conformity with the treaty okay so if you work for Deepa uh deep space injury deep space injuries sorry I'm a tour lawyer sometimes uh Deep Space Industries or planetary resources or um I think there's one other group that is actually investing money into developing um space Technologies uh and you are one of their lawyers here are some of the arguments that you make uh one uh I'm talking about asteroids now uh these aren't celestial bodies remember outer space including the moon and other celestial bodies um so well what well I'll be honest I think this is kind of a dumb argument right uh what are celestial bodies well the Moon is obviously um other moons planets so probably Suns not that it matters but so why would asteroids not be um the point is the the the treaty was trying to define the uses of outer space but nobody gives a about outer space they care about the stuff in it right and asteroids are in it so I don't think that this argument Works uh now a little bit better argument is screw the tree my country said I can do this all right um that's possibility come back to that they also say uh this isn't appropriation remember the treaty talks about no uh no National appropriation of these bodies and they'll say well I'm not appropriating anything I just want to get the good stuff out of it I just want to dig into it to me this is sort of like saying like you wake up in the middle of the night and I'm out digging in your yard you know and uh and I say don't worry I'm not threatening your property I'm just doing some digging I mean that's probably not going to make you feel too comfortable and there also you also get to the point of well what if you've you've dug out the whole thing and you've hollowed it out you've basically appropriated it so that's a little dicey and then they'll also say all right well it's not National appropriation which is basically the same argument that Dennis hope is making I'm not a nation um and so the treaty doesn't apply to me all right in the topic of US law um there's really not very much of this here but the United States did pass a statute um at the end of 2015 sponsored by of all people Ted Cruz um the US commercial space launch competitiveness Act and the first part of this totally boring and has to do with like insurance and things like that but at the very end they stuck in a provision that it used to be called uh the asteroids act uh you know they like to have these cool acronyms now it's got a crappy acronym but they they stuck it in there at the end and uh this is basically what it says a United States citizen shall be entitled to any asteroid resource you can possess it Own It transport it use it do whatever you want with it uh have fun as long as it's obtained in accordance with applicable law including the international obligations of the United States so all right wait a minute if the United States can't appropriate it for itself how can it tell its citizens to go and do that it doesn't seem to be consistent with the international obligations of the United States how would we feel if uh you know Russia or China were doing that probably uh probably not great maybe we're fine with Russia doing it now but all right um and they also included this isn't in the statute but they put this in the ACT uh Congress likes to do this um they'll stick in this stuff about what they understand the law to mean uh it is a sense of Congress that by passing this the United States is not asserting sovereignty or Sovereign or exclusive rights over any Celestial body well okay yeah I'm not sure if they're very clear on this but you can't you either either violating the law or you're not you don't get to violate it and then say you're not violating it even if you're Congress um so so this is all it's very up in the air what what does this mean um and this was sponsored by um in part by the industries because one of the things that they want is certainty in this area because they want people to invest right um well this just doesn't do that passing a law that says um go get asteroids and you know we'll worry about it later doesn't really um settle the question but the US here is disclaiming any intent to take over uh things in outer space okay so well will people will other countries be comfortable with that I don't know and the example uh that I want to use is a strange uh old law called the guano Islands Act of 1856 and this is uh laws still on the books today actually uh it was passed at a time when there was there was no artificial fertilizer um so the best source of fertilizer at the time was bird shed guano right uh seabirds have lived on these islands for like a mill years and wow the stuff they left behind is great fertilizer so at the time the United States wanted to encourage people to go and mine this vital resource so they passed a law saying if you United States citizen find one of these islands um go for it and uh as I don't know if you can read down here it says if you find this and you exploit it those islands uh shall be considered as appertaining to the United States uh what does that mean no one knows no one knew at the time no one knows now appertain can we claim it because here's something something is interesting to remember um the uh the Constitution talks about States and it talks about territories which we had at the time okay um there is no no provision in the Constitution for getting new territories let alone for claiming these islands that are out there there's just no authorization in the uh in the Constitution for it the the Louisiana Purchase which you probably heard of totally illegal uh Jefferson in fact President Jefferson um wrote a uh he drafted a constitutional amendment that he was going to propose that would have given the the country the power to uh to do this kind of thing to expand that way and then he thought about it and he decided yeah maybe we shouldn't uh maybe we shouldn't offer that and he just kind of stuck it in a drawer and did it anyway so that's that's how the Louisiana Purchase happened but um so appertaining to the United States nobody knows what it means um oh yeah I found this guano guano guano it was a big deal at the time I just thought that was uh that was funny uh and this is the show still on the books today the guano Islands act there was a case involving guano Island as recently as 1997 um and uh the issues surrounding jurisdiction over these islands um and we still claim treat we still claim territories around the world um that we originally claimed under this guano Islands Act of all things because what happens when uh you say your citizens can go and exploit territories and things like that um things happen uh people uh you know crimes are committed there was a murder committed on one of these islands in the Caribbean and that the issue of jurisdiction over that Island went up to the US Supreme Court um and that hard as it may be be to believe there's a series of cases about that that are the whole legal basis for why the United States has these um basically this kind of semi Empire around the world uh all comes from this guano Islands act so the point is that um the the US has kind of done this again right we've passed this sort of um odd statute that's sort of vague we sort of deputize citizens to go out and do this and um but other countries probably are not going to be too uh uh too comforted by the the statements in the law saying that we we're not claiming these things because um oh also in the law authorizes the uh the president to use Armed Forces to defend these things if necessary you know it's not necessary now but uh but it was then so uh this is just an example of how those kind of unusual uh vague uh statements in the law can turn into something that really uh that really matters now uh don't get me wrong I think we should uh I think we should get involved in Asteroid mining I think we should learn to uh we should develop the technology to go and and uh mine these things and go and divert them if we need to okay it's uh it's important to do that uh I just think it's um it's not entirely clear uh that there's we have a legal right to do this now so um to uh sum up here's what we've learned using the sun is still free it's good to know she was planning to charge corporations uh but she said there would be an exception for individual people so you're you guys are covered uh if you buy a moon or a planet from somebody all you're getting is a piece of paper Dennis Dennis hope and Mr donon do not have any rights that they could sell you uh the US might be violating the outer space treaty we need a new treaty we can withdraw from it if we want to but uh we should renegotiate it uh go get an asteroid if you can do it I don't want to discourage you from that just be sure that you can defend it if somebody else also wants it okay all right thanks this is my book my firm uh my blog is lingthe bar. net uh please check it out and um I did one once represent a guy who owned a moonrock so I have at least that much experience in the area okay thanks very much [Applause]