DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

AIR AND SPACE LAW

SEMINAR PAPER

TOPIC: PROPERTY RIGHTS IN OUTER SPACE

Submitted to- Submitted by-

Dr Vikas Bhati Tulika Gupta

Assistant Professor of Law, Roll no.-180101150

Dr. Ram Manohar Lohiya National Law B.A.LL.B. (Hons.) 5th year

University, Lucknow X Semester

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 ACKNOWLEDGEMENT

“Words can never convey what deeds have done.”

Writing a seminar paper is never a single man’s job. I am overwhelmed in all humbleness and
grateful to acknowledge my depth to all those who have helped me to put ideas, well above
the level of simplicity and into something concrete.

I am very thankful to my law professor Dr Vikas Bhati for his valuable help. He was always
there to show the right track when I needed his help. With the help of his valuable
suggestions, guidance and encouragement, I was able to complete this project. I would also
like to thank my friends, who often helped and gave me support at critical junctures during
the making of this project.

I hope you will appreciate the hard work that I have put in this project

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 TABLE OF CONTENTS

INTRODUCTION......................................................................................................................4

INTERNATIONAL TREATIES IN PROPERTY RIGHTS OVER SPACE............................5

PROPERTY RIGHTS AND GEOSYNCHRONOUS ORBIT..................................................6

ECONOMIC IMPACT OF PROPERTY RIGHTS IN SPACE.................................................7

CLAIMS OF PROPERTY IN OUTER SPACE........................................................................8

Dennis Hope Case..................................................................................................................8

Nemitz Case.........................................................................................................................14

ETHICAL CONUNDRUM.....................................................................................................16

SPACE LAW IN INDIA AND THEIR IMPACT ON SPACE EXPLORATION..................17

Analysis of the Bill...............................................................................................................17

CHALLENGES IN PROPERTY OWNERSHIP RIGHTS.....................................................20

Degradation of the celestial bodies......................................................................................20

Res Nullius or Res Communis.............................................................................................20

CONCLUSION........................................................................................................................21

REFERENCES.........................................................................................................................21

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 INTRODUCTION

Recently, the usage and outlook of space as a resource has become prevalent. Humans have
sought to use it for economic benefits, and exploit lands beyond the earth. This paper deals
only with tangible property, and does not include intellectual property in its analysis. To
govern activities in space, the United Nations Committee on the Peaceful Uses of the
Outer Space (UNCOPUOS) introduced several treaties like the Outer Space Treaty, the
Moon Treaty, Rescue Treaty, Liability Treaty and Registration Treaty, declaring outer space
to be res communis, where all entities have common access to the resources that are
contained within its realm and are precluded from making any claims of ownership. The
approach of res nullis was rejected, as it would have proclaimed outer space to be available
for conquest. However, these treaties encourage the exploration of outer space for peaceful
purposes. While national appropriation is expressly not allowed, there is no mention about
private ownership of celestial bodies. Confusion over private property rights has given rise to
many land claims by people, most famously Dennis Hope, and American presidents Jimmy
Carter and Ronald Reagan. However, these claims face hurdles such as a lack of a permanent
settlement, lack of sovereignty, no productive use of property barring reselling, and the res
communis principle. The paper then makes a case for allowing privatization of space and
allowing mankind to benefit from this resource fully.

Why is it important to study property rights in outer space?

Everybody in this world, including us, wants to acquire property. Property means money,
money means power, and power means you are the rulers of the world. Evolved with the
power of thinking, we humans are curious and want to conquer territories and lands. Our
ancestors set out on adventures to find lands and hence this passion for exploration and desire
to acquire property is in our blood.

We tend to use all available resources to us on earth. The space, in a way, is a resource and it
was only a matter of time when looked up in the sky and made up our minds to make the best
possible and economical use of this resource. Not only is it in human nature, but it is also
economically beneficial for us to explore and exploit lands beyond Earth. Exploration
requires technology, men and investment and this could only mean wealth for such nation or
company.

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With humans exploring and reaching new heights in outer space, treaties governing their
activities were required. The legal sub-committee of United Nations Committee on the
Peaceful Uses of the Outer Space (UNCOPUOS) introduced several treaties like the Outer
Space Treaty, the Moon Treaty, Rescue Treaty, Liability Treaty and Registration Treaty. The
exercise of sovereign control in outer space was the initial focus of the drafters of the outer
space treaty.1 They rejected the concept of res nullis which would have treated the outer
space as “unclaimed territory” that belongs to no one, but was available for conquest. Such an
agreement would allow nations to peremptorily claim ownership of the celestial bodies that
they were the first to reach and exclude access to all others. Instead, they declared outer space
to be res communis where all entities, individual or corporate, and nations have common or
open access to the resources that are contained within its realm and are precluded from
making any claims of ownership. The basic principles governing these treaties are the non-
national appropriation of outer space and res communis.

INTERNATIONAL TREATIES IN PROPERTY RIGHTS OVER SPACE

To regulate space laws at international level, we have many multi-lateral treaties and United
Nations’

conventions such as;

1) Outer Space Treaty 1968

2) Astronaut Rescue Agreement 1967

3) The Liability Convention 1967

4) Registration Convention 1974

5) The Moon agreement 1979

The two important treaties in connection with property rights in outer space are the Outer
Space Treaty and the Moon Treaty. The Outer Space Treaty provides the basic framework
on international space law and includes the principles like the exploration and use of outer
space shall be carried out for the benefit and in the interests of all countries and shall be the
province of all mankind and that the outer space shall be free for exploration and use by all
States. “This principle gives rise to the principle of common heritage of mankind. Common

1
M. Listner, ‘The Ownership and Exploitation of Outer Space’ [2003].

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Heritage of Mankind, which although has not been expressly mentioned, is discussed in
Articles 1, 2 and 4. It is a principle of international law which holds that defined territorial
areas and elements of humanity’s common heritage (cultural and natural) should be held in
trust for future generations and be protected from exploitation by individual nation states or
corporations. Common Heritage of Mankind, however has very limited scope in outer space
due to the ambiguity of treaties governing it.”2

Article II of The Outer Space Treaty clearly prohibits any national appropriation, by claim of
sovereignty, by use and occupation or by any means. This means that the Governments of the
world cannot acquire any land for their own benefit in the outer space. The loophole in the
treaty, however, is the silence over private ownership of celestial bodies. 3 The Moon treaty on
the other hand clearly bans any kind of privatization of moon and other celestial bodies by
even an individual under Article 11. “This article also provides that ‘the moon and its natural
resources are the common heritage of mankind’ Moon treaty however fizzled out because
important and influential countries like U.S. and U.S.S.R. did not ratify it, with only 13
United Nations countries ratifying it.” 4 Hence we will concern with only the Outer Space
Treaty in this project.

Although outer space cannot be appropriated by nations, the objects launched by nations are
considered to be the property of the states. Hence, for example, the satellites launched by
India will be considered to be the national property of India.

PROPERTY RIGHTS AND GEOSYNCHRONOUS ORBIT

The outer space treaty completely bans national appropriation of outer space. However, it
allows and encourages exploration of outer space for peaceful purposes. Geosynchronous
orbit is one such area of outer space which can be nationally appropriated. “Satellites in
geostationary orbit must all occupy a single ring above the Equator. The requirement to space
these satellites apart to avoid harmful radio-frequency interference during operations means
that there are a limited number of orbital “slots” available, thus only a limited number of
satellites can be operated in geostationary orbit. This has led to conflict between different
countries wishing access to the same orbital slots (countries near the same longitude but

2
E. Guntrip, ‘THE COMMON HERITAGE OF MANKIND: AN ADEQUATE REGIME FOR MANAGING
THE DEEP SEABED?’ [2003].
3
Supra note 1.
4
M. Listner, ‘The Moon Treaty: failed international law or waiting in the shadows?’ [2011].

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differing latitudes) and radio frequencies. These disputes are addressed through
the International Telecommunication Union‘s (ITU) allocation mechanism.”5

ECONOMIC IMPACT OF PROPERTY RIGHTS IN SPACE

Property rights in economic growth criteria can be defined as the right of owner to use his
asset for further production purposes or dispose of the asset or prohibit the use of such asset
by any second person. Here economic aspect of impact of whether grant of property right
should be given in space and what good it’ll bring to the market, will be discussed. As Private
Market are led by private people, it is basically run by two important factors such as: Risk &
Profit, Both the factors are inter-related to each other as higher the risk, higher is the profit
but that is applicable only in certain areas and also limited to certain rare instances. Mostly
businessmen or huge investment companies seek “certainty” before they invest their money
in a project, as no one like to lose their money and it is very clear that International Space law
is anything but Certain in this regard. As a situation like where a private entity are investing
billions of dollars in a certain project, will likely ensure that there project won’t be scraped
off by some technical issue or loophole. As there are four main risks associated with non-
granting of property rights in space.

First risk is that insecure property rights can demotivate the investor as they are not generally
fruitful and they not always worth the risk or effort. Secondly insecure property rights can
also bring along the costs to defend their property which will make the project more
expensive and riskier6. Third risk being that with insecure property rights, there is lack of
infrastructure in space which will increase the cost of transport of products from one place to
another and such development cannot take place while insecure property rights exist. These
all risks associated might bring a halt to space exploration by private entities.

5
L. D. Roberts, ‘A Lost Connection: Geostationary Satellite Networks and the International Telecommunication
Union’ (law.berkeley.edu 2000) <http://www.law.berkeley.edu/journals/btlj/articles/vol15/roberts/roberts.html>
accessed 1 April 2023.
6
Tim Besley, Maltreesh Ghatak, “REFORMING PROPERTY RIGHTS”, VOX CEPR Policy Portal, 22 April
2009, available at https://voxeu.org/article/reforming-property-rights-and-economic-development last visited at
02/04/2023.

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 CLAIMS OF PROPERTY IN OUTER SPACE

Anything otherwise expressly prohibited, no activity can be said to be banned. 7 While

national appropriation is expressly not allowed, there is no mention about private ownership
of celestial bodies. Confusion over private property rights has given rise to many land claims
by people. The two most interesting claims are by Dennis Hope and Gregory Nemitz.

DENNIS HOPE CASE

Dennis M. Hope is a citizen of United States who filed a declaration of ownership with the
U.S., UN and USSR and claimed property rights over the Moon. On getting no response, he
assumed his ownership and even started a company called “Lunar Embassy”.8

Dennis Hope claims that he has right to own property on moon as The Outer Space Treaty
only bars nations from appropriating moon and other celestial bodies in the outer space but
doesn’t bar any individual or company.9 “He founded his company in 1980 to sell parcels of
celestial property to private entities. Lunar Embassy then also informed the UN and USSR of
its claim. Any citizen can purchase the property for approximately 20$ only and can earn the
property rights.” Hope has gone to the extent of selling property rights at 19$ for one acre of
land on Mercury, Venus and Mars as well. 10 On paying this minimal amount, one gets three
documents – a Deed, a map and the Constitution and Bill of Rights, formulated by Hope
himself, of that particular celestial body. A short story “You Own What?” is also provided
which includes the declaration of ownership filed with the United States, the USSR and the
United Nations.11

Although Dennis hope claimed his property rights over the moon, the UN, US and USSR
chose to remain silent on the issue and did not reply to him. This means either they recognize
his claim or think his claim is too childish and insufficiently ripe to file suit. 12 On asking
Dennis Hope about how he considers the signatories’ silence as a recognition to his claim, he
replied, “People have said just because the UN never responded doesn’t mean you own it.

7
M. Listner, ‘The Ownership and Exploitation of Outer Space’ [2003].
8
R. Ahmed, ‘Car Salesman Owns The Moon, Has Made $11 Million By Selling Plots To Tom Cruise And
President Reagan’ (hngn.com 2014) <http://www.hngn.com/articles/33529/20140611/car-salesman-owns-
moon-made-11-million-selling-plots-tom.htm> accessed 31 March 2023.
9
E. SVOBODA, ‘Who owns the moon?’ (salon.com 2008)
<http://www.salon.com/2008/01/19/moon_real_estate/> accessed 1 April 2023.
10
‘Introduction’ (lunarembassy.com ) <http://lunarembassy.com/#!prettyPhoto> accessed 1 April 2023.
11
Ibid.
12
Supra note 1.

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Well, I did my due diligence, they should have done theirs.” 13 “Hope even said that he wishes
to form a “democratic republic sovereign nation,” the Galactic Government, in which his
property-owning customers will enjoy voting rights. If other nations infringe on the territory
he has claimed, he will view their incursions as acts of war.”14

As many as 6 million people have already purchased land from Lunar Embassy, which
includes, some celebrities, NASA employees and even American presidents like Jimmy
Carter and Ronald Reagan. To not reply to the claims made by Hope, the signatories of the
treaty are only creating confusion over the legality of such a claim.

Although the company has attracted a lot of attention, there are several problems with its
territorial claims. One of the major drawbacks of Hope’s claim is the lack of a permanent
settlement on moon. Although Lunar Embassy has customers who would constitute its
citizens, they do not live together on moon and hence the settlement is not permanent. 15 To
claim property rights on earth, one does so either under Civil Law or Common Law. Civil
law requires a person to take up an unclaimed land, occupy it, use it and does something
productive with it to claim his property rights. Once he does that, the Government recognizes
his rights over that particular property. This is the use and occupation method. Under
common law, property rights originate from the State. The whole territory of the state is its
property and its citizens have to ask for the land. Since outer space doesn’t recognize
sovereignty, civil law must be applicable in outer space. In the present case however, the only
use of the property is reselling it. With technologies at present, no individual can go to moon
and start living there and does any occupation. Hence the fact that no customers are living on
the claimed territories, the moon cannot be said to be owned by Lunar Embassy.

Secondly, as already discussed above, outer space follows the concept of res communis and
not res nullis.16 The outer space is for everyone’s enjoyment and exploitation and no one
person can claim it as his own.

13
Supra note 8.
14
E. SVOBODA, ‘Who owns the moon?’ (salon.com 2008)
<http://www.salon.com/2008/01/19/moon_real_estate/> accessed 1 April 2023.
15
Supra note 1.
16
Ibid.

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Thirdly, his claim that he is the first person to raise such a claim is not true. Few people have
already tried claiming various outer space areas before Dennis Hope like Frederick in the
19th century, James Mangan17 in 1948 and Jenaro Gajardo Vera18 in 1953.

The best counter the UN might use against Lunar Embassy is that while the company may
claim that it has legal title to the moon, its claim is in direct contradiction to international law.

Another extremely surprising and shocking thing about this case happened in 2003 when the
National Republican Congressional Committee awarded Lunar Embassy and Denis hope with
medals and prestigious prices. The news reads on their website, “Mr. Hope has been named
co-chairman of the Republican Congressional Business Advisory Council. He has also been
given the national Republican Leadership Award and most recently he has been issued the
highest honour the national Republican Congressional Committee has, the prestigious
Republican GOLD Medals.”19 While such news cannot be confirmed from the websites, it
cannot be said that US has started to acknowledge it because no formal recognition has been
given to Lunar Embassy. Although the signatories of the Treaty do not believe that it is
important to answer such an issue, claims like that of Hope cannot be ignored.

Claims like these wide open the discussion on private ownership of outer space. It leaves a
big fill in the blank on interpretation of Article II of the Outer Space Treaty.

This brings us to the basic question of interpretation. There can be four ways of interpreting
private ownership in outer space. The first one is the lenient method in which national
appropriation is considered to be separate from private ownership. 20 This kind of
interpretation supports claims by people like Dennis Hope who believe there is a loophole in
the Outer Space Treaty in the language of Article II of the Outer Space Treaty. This type of
view isn’t followed by many authors.

Most of the authors have a different viewpoint that private ownership too is banned under
OST and that private owners are just an extension of a nation. 21 Many agree that such a view
was taken even while formulating the OST. “The delegate Bal of Belgium said “his

17
Science Illustrated, ‘Chicago Man Stakes Claim to Outer Space ‘ (blog.modernmechanix.com 2008)
<http://blog.modernmechanix.com/chicago-man-stakes-claim-to-outer-space/> accessed 31 March 2023.
18
V.G. Pop, Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership (1st,
Springer Publishing, 2009) 3.
19
‘DENNIS HOPE RECEIVES THE PRESTIGIOUS REPUBLICAN GOLD MEDAL’ (lunarembassy.com )
<http://lunarembassy.com/us-congress> accessed 3 April 2023.
20
V.G. Pop, Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership (1st,
Springer Publishing, Romania 2009) 63.
21
Ibid.

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delegation has taken note of the interpretation of the term ‘non-appropriation’ advanced by
several delegations as covering both the establishment of sovereignty and the creation of
titles to property in private law. The French Delegate also mentioned, one of the three basic
principles that have been affirmed is the prohibition of any claim of sovereignty or property
rights in space. The reason why a clear mention of ban of private ownership was not
mentioned was because such a thing had already been discussed at the negotiating table.
Another point working in favour of this view are the words in the article “By any other
means”. There cannot be appropriation by any means and hence private ownership is
included in it. Final supporting point of this view can be the fact that private ownership
cannot exist without National appropriation. This means that one occupies land on behalf of
the state. Hence the state must acknowledge such a claim.”22

Another viewpoint is that private ownership can occur under individual sovereignty. 23 It can
be contended that it is not a requirement for a state to exist to give birth to property
rights.24 Many different authors have pointed out that real estate isn’t just a word but is
formed by morals and ethics like trust, respect, care and duty towards the nature, etc. 25 It is
isn’t wrong to say that such habits must have existed even before colonies were made or
societies were established, giving birth to a state. 26 Hence, under this view, one can claim
individual sovereignty.

The last viewpoint is that private ownership may occur under international sovereignty. In the
Article II of the OST, it has been given that there cannot be national appropriation. Nowhere
is it written about international appropriation.

The Board of Directors of the International Institute of Space Law (IISL), however in a
statement, have given a major boost to the viewpoint that Article II of OST includes ban on
private appropriation of outer space. The board said that, “the activities of non-governmental
entities are national activities. The prohibition of national appropriation thus includes
appropriation by private entities whether individuals or corporations since that would be
national activity.”27

22
Ibid.
23
Ibid.
24
Ibid.
25
Ibid.
26
Ibid.
27
‘Statement by the Board of Directors * Of the International Institute of Space Law (IISL) On Claims to
Property Rights Regarding The Moon and Other Celestial Bodies’ (www.iislweb.org 2004)
<http://www.iislweb.org/docs/IISL_Outer_Space_Treaty_Statement.pdf> accessed 3 April 2023.

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We however come down to the basic question. Do we really need property rights in outer
space? The answer to this question should be yes. For any development of the understanding
of the outer space, there has to be exploration and exploitation of outer space. The private
parties would not spend billions of dollars if they do not earn profit over them and have to
instead share it with other countries and sovereigns. Random land claims over celestial bodies
might be vague as the only use of such properties would be selling deeds. This type of claim
may not sustain. To claim property rights over celestial bodies, there must be use and
occupation. So, if a group of people from different countries are launched and funded by a
multinational body to settle on moon, will it give rise to property rights?

An example of such settlement in outer space already in place is the International Space
Station. The ISS consists of astronauts, engineers, etc from different countries and
sovereigns. Mars-one is an upcoming mission to mars for which this multinational initiative
has chosen people from all over the world. 28 There are however certain issues which must be
dealt with.

As a matter of first importance, we should simply envision people can at last build a
perpetual living space on the lunar or Martian surface. The real question that may emerge is
the manner by which to figure out which nation is qualified to uphold its purview over that
extra-terrestrial settlement? Because of the Liability Convention, governments are singularly
in charge of their nationals’ tries in space. 29 At the end of the day, if a space module, either in
circle or on a surface, is manufactured by a given private or open element of a nation, the
separate government has unquestionably the ward inside such module and its occupants,
much the same as the legitimate circumstance of hailed vessels in high oceans. 30

“For instance, the International Space Station is comprised of various modules that belong to
US, Russian, European, or Japanese registered entities. Should any legal necessity arise, the
owner government of the module in which the legal incident occurred would have
jurisdiction. Such a legal criterion, though, will not be appropriate for even a relatively small
permanent human settlement in space with numerous governments involved. Any legal
incident will require studying the national law of the government who owns the module,

28
‘Human Settlement on Mars’ (mars-one.com ) <http://www.mars-one.com/> accessed 2 April 2023.
29
B. Shakouri, ‘Space settlement and future of space law’ (thespacereview.com 2013)
<http://www.thespacereview.com/article/2269/1> accessed 2 April 2023.
30
Ibid.

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chamber, or installation where it took place, something that, if not impossible, would be
confusing and totally annoying.”31

One answer for this issue is the presentation of a Specialized Space Code of Conduct to
blanket the most well-known legitimate subjects inside multinational space stations or extra-
terrestrial natural surroundings.32 So in the event that any infringement of lawful rights
happen, all debate naturally get alluded to the particular implicit rules that speaks to the
agreement of all the included governments.33 This code could be focused around the most
well-known and generally acknowledged standards of major legitimate frameworks in the
fields like tort, common, or criminal law that consent to general straightforward lawful needs
of those in space territories.34 Real criminal acts or confused instances of risk that are not
secured by Special Space Code of Conduct may be alluded to the concurred global tribunal
on Earth.35

Commercialization of space is the second issue that is of significant vitality, essentially as to

making motivators for pulling in more players in peaceful space activities. 36 With a specific
end goal to induce the investigation and improvement of space by privately owned
businesses, it is certain to perceive the right of proprietorship in space.

In the event that there weren’t such constraints in regards to the responsibility for bodies, we
would likely have seen the first space settlements at this point. In any case, it still is possible
to try out ways to establish dummy property rights. This will help in motivating private and
public companies to invest in this market.37

When human settlements on adjacent heavenly bodies are secured, their business trades with
Earth will turn into an issue. Space vagrants who decide to leave Earth and settle in an
uncomfortable solid or metal base on the Moon or Mars must have exceptionally solid
motivators to step forward for such amazing enterprise. There appears to be no more
noteworthy prize than the lucrative monetary open doors found in a settlement on an outsider
surface brimming with potential assets.38

31
Supra note 29.
32
Ibid.
33
Ibid.
34
Ibid.
35
Ibid.
36
Ibid.
37
Ibid.
38
Ibid.

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“The positive economic exchange rate with the Earth may assure the continuation and even
expansion of space settlements on celestial bodies. Otherwise, settlers either will depend on
equipment and reinforcements from Earth or go bankrupt. This may shed light on the
importance of adopting suitable legal regime for human space settlements that, on one hand,
fuels the needed investments for establishment of space settlements and, on the other hand,
helps the efforts of inhabitants those settlements flourish economically and leads ultimately to
their self-sufficiency.”39

NEMITZ CASE

The present case involves Gregory W. Nemitz’ (Appellant) assertion of private property
rights in asteroid 433, “Eros”. The object in contention is Eros which is a large asteroid in
stable orbit around the sun. On its closest orbit between the Earth and Mars, Eros was 14
million miles away.40 “The Appellant claims that his ownership of Eros is based on his
registration on the Archimedes Institute website and his filing of a California Uniform
Commercial Code security interest, in which he named himself as both creditor and
debtor.”41 This claim arises out of the February 12, 2001 landing of NASA’s NEAR
Shoemaker spacecraft on Eros. The appellant claimed that the landing of the NASA
spacecraft infringed his private property rights and that he should be compensated for parking
and storage fees which total twenty cents per year, or 20$ per century. He estimates Eros’
initial value to be 8 billion$. Every day the spacecraft remains on Eros without paying the
claimed fees, the Appellant alleges that he is suffering special damages of 5 million $ because
he is legally inhibited from accessing the full value of the asteroid and proceeding with his
planned developments.42

The arguments put up by Nemitz were mainly related to his natural rights as a citizen of US
and dealt with the Constitution of US. One argument however was related to Outer Space. He
says that the Outer Space Treaty does not apply to him and that any application of the treaty
would be unconstitutional.43 He says that owning property is his natural right and that the
Outer Space Treaty would not apply to him because he has neither asked the never granted
the United States Government the right to act in this manner nor has he acted in any manner

39
Ibid.
40
R. Kelly, ‘NEMITZ v. UNITED STATES, A CASE OF FIRST IMPRESSION: APPROPRIATION,
PRIVATE PROPERTY RIGHTS AND SPACE LAW BEFORE THE FEDERAL COURTS OF THE UNITED
STATES’ [2004] 297.
41
Ibid.
42
Ibid.
43
Ibid.

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that could strip him of his “sovereign” authority to enter into agreements of this
type.44 According to the Appellant, he should have personally entered into such an agreement
but since he hasn’t, it would be unconstitutional to consider Outer Space Treaty.

The arguments put forward by the State are that Constitution does not produce rights. Nemitz
had himself agreed to the fact that his claim of natural right cannot be found in any statute or
common law.45 The State argues that there is no use or occupation of the property to show
that Nemitz had any property interest. The State says that since there is no interest, there
arises no right over it. The District Court hence doesn’t need to take into account the Outer
Space Treaty.

It was held that neither the failure of United States to ratify the Moon Treaty nor the States’
ratification of the OST created any rights in Nemitz to appropriate private property rights on
asteroids. The conclusion that can be drawn directly from the case is that no person has
natural right over any property. Neither the common law nor the civil law considers any
natural right over priority.

The case is important in this aspect that first of all, this was the first case that went to the
courts. Before this, only claims had been made and court had never been approached. The
appellant fails however, because he cannot prove that he has natural property rights over
outer space or any part of outer space. He tries to establish this through US constitution but
court dismisses it. The one issue that should have been raised but neither party did so was the
interpretation of Outer Space Treaty’s Articles 1 and 2. From this case we can conclude that
Article 1 and 2 only prescribe enjoyment of outer space by nations and people. Article 2,
although bans nations from appropriating the space, is quiet on the issue of private
appropriation. This court however, to some extent, tries to establish the fact that even private
entities would face tough competition in proving their legality in claiming property rights. By
dismissing the case in favour of the respondents, it can be said that the private entities can
maximum enjoy the outer space but have a long way to go to establish property rights.

44
Ibid.
45
Ibid.

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 ETHICAL CONUNDRUM

the insecure property rights tend to have negative effects on the economy of the state and that
they demotivate the private entities to invest in the same sector. Now the question is just for
the sake of private entities’ investment and for them to play their part in space exploration,
should we allow them to possess and claim space or celestial bodies which are deemed to be
belongings of “humankind”. There are however many factors which need to be taken into
consideration such as for good of humanity as if any circumstances happened such as mass
extinction or prediction of mass extinction and only way to save humanity is through
allowing a private company to transport few humans and establish a base on a celestial body.
Other factor being that private companies are investing their hard-earned money on research
& development and pushing the limits of science in pursuit of space exploration, but unlike
government they need profits and incentives to run and it cannot happen safely without
secure property rights, as they are investing their money then they might deserve secure
property rights.

Others factors might be taken into consideration the type of raw material required in
construction of such property. As if the raw material was taken from earth to space to build a
certain space station or a base, then certainly the state of origin might claim jurisdiction over
it but the question is if the raw material was extracted from outer space and then a base or
station was built, then who’ll enjoy jurisdiction over it and will the private entity enjoy secure
property rights over it. It is however ethical to pronounce that secured right would be given to
whoever put efforts into the structure as he is the deserving.

But allowing the companies into commercializing space might do to space, what industrial
revolution is doing to earth. It would lead to space pollution by causing space debris, it might
contaminate potential microbiological life on other celestial bodies and mining “Near Earth
Objects” might very well lead in change of trajectory of any asteroid and bring it into
collision course with earth.

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 SPACE LAW IN INDIA AND THEIR IMPACT ON SPACE EXPLORATION

Space laws in India should be formulated and allowed to commercialize to boost the
economy and which will aim to bring India a technological advancement because India is
way behind the western countries in the field of space exploration as if we see in the past,
USSR put a man in the orbit in 1961, India yet to do so. USA put a man on the moon in 1969,
India yet to do so. International society has built an International Space Station, China will
make a Chinese space station till 2022, India yet to do so. This is no news that India is very
far behind in the competition, the main reason that could be argued is that there is lack of
interest of private sector in space and space laws in the country which regulate the field. As
per Article 5146 and Article 25347 of the Indian Constitution, the state is directed to enact laws
to implement or ratify international treaties mentioned above. So, in 2017, a draft bill was
presented to the stakeholders in the field. The bill most commonly known as “The Space
Activities Bill, 2017”. Most significant agenda of the bill is to enhance and motivate private
corporations or individuals to take part in the space activities and to regulate their usage of
space in commercialization. This bill however stayed silent on property right but is a way
forward as it motivates private entities to invest in space sector.

ANALYSIS OF THE BILL

a) Definitions

The scope of the bill is very broad in nature as the definition of commercial space activity 48,
as it says that any space activity which generates revenue is a commercial space activity and
space object49 as any article or object launched or planned to launch into outer space for the
purpose of putting into orbit or Earth or sending it further away. This provision basically
covers every object which could be send to space.

b) Regulatory Mechanism

The duty to formulate a regulatory authority which promotes space observation, study and
utilize space for technical and scientific development which could also frame the policies
which benefits national security as well as for peaceful purposes 50. The body is also
46
The Constitution of India, 1950, art 51.
47
The Constitution of India, 1950, art 253.
48
Section 2(a) of The Space Activities Bill, 2017.
49
Section 2(g) of The Space Activities Bill, 2017.
50
Section 3 (a) (b) of The Space Activities Bill, 2017.

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authorised with regulating the procedure for any operations of any space activity by any
institution51.

c) Powers of Regulatory Body

The body will have power to grant or transfer the license to anyone, as well as terminate or
suspend the said license52. Along with granting license, the body will also have the power to
ensure53 that the licensee would comply with the terms and conditions provided would be
adhered to. Some more powers of the regulatory body are;

1) To maintain a record or register of every space objects54.

2) To monitor space activities and conform with the norms of international treaties to which
India is a party55.

3) Supervisory role of Space activity of which license has given56.

4) Investigate any type of accident or incident if it takes place during space activity. 57

d) License

License for commercial space activity, could be achieved by making an application to central
government by mentioning the details or purpose of such commercial activity 58.The licensee
would need to agree to certain terms and conditions 59 as may be prescribed by the
government in order to get the license. However, there are certain exceptions provided under
which the government could refuse to grant license60 such as;

1) If the said operation jeopardises public health or safety of any individual or his property

2) If the said activity or operation is in contravention of any international obligating incurred

by India

3) If the said operation compromises integrity, security, sovereignty, defence, public order,
morality of India as well as if it contravenes friendly relations of India with other states.

51
Section 3 (g) of The Space Activities Bill, 2017.
52
Section 3(c) of The Space Activities Bill, 2017.
53
Section 3(d) of The Space Activities Bill, 2017.
54
Section 3(h) of The Space Activities Bill, 2017.
55
Section 3(i) of The Space Activities Bill, 2017.
56
Section 3(k) of The Space Activities Bill, 2017.
57
Section 3(m) of The Space Activities Bill, 2017.
58
Section 7(1) of The Space Activities Bill, 2017.
59
Section 8 of The Space Activities Bill, 2017.
60
Section 7(2) of The Space Activities Bill, 2017.

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 e) Punishment

This also provides criminal liability as well as civil for offences or illegal omissions done
under this act such as;

1) If any person undertakes any activity related to space without getting license will be
punished with imprisonment of 1 to 3 years and with fine not less than 1 crore.61

2) If any person produces or furnish false document to get the license, he will be liable for
imprisonment up to 1 year or with fine up to 50 thousand.62

3) Any person who suppress factual information for government or any authority of
government, will be liable for imprisonment up to 1 year or a fine which could extend to 50
thousand or both.63

4) Any person who causes pollution on earth whether on surface, or atmosphere or even in
outer space including the heavenly bodies such as Moon or Mars etc. will be liable for
imprisonment of minimum one year to maximum three years and with fine not less than 1
crore.64

5) Any person who discloses any restricted document, 65 will be punished with imprisonment
of minimum six months to maximum three years or minimum fine of fifty thousand which
could extend to one lakh.66

6) Any person who violates or does not follow any direction provided by the central
government will be punished with fine of minimum 1 crore which could extend to 50
crores.67

7) Any person who trespassed into prohibited areas 68 without authority will be punished with
imprisonment of minimum six months to maximum three years or minimum fine of fifty
thousand which could extend to one lakh.69

61
Section 13 of The Space Activities Bill, 2017.
62
Section 14 of The Space Activities Bill, 2017.
63
Section 15 of The Space Activities Bill, 2017.
64
Section 16 of The Space Activities Bill, 2017.
65
Section 17 of The Space Activities Bill, 2017.
66
Section 18 of The Space Activities Bill, 2017.
67
Section 20 of The Space Activities Bill, 2017.
68
Section 21 of The Space Activities Bill, 2017.
69
Section 22 of The Space Activities Bill, 2017.

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 CHALLENGES IN PROPERTY OWNERSHIP RIGHTS

DEGRADATION OF THE CELESTIAL BODIES

This is one of the most primary concerns in the exercise of property rights. Humans have
established a successful pattern of disturbing the ecological balances back in earth, due to
over exploitation. This will without any doubt apply to the property in the outer space. The
space realm is the only real that has been left less explored by the mankind, and once the
space exploration begins at full stretch the degradation and disturbing of the ecological
balance. Space tourism will also cause a fair share of problems.

RES NULLIUS OR RES COMMUNIS

Res Nullius means that the property belongs to no one. However, the entire purpose of the
moon treaty is to develop the resource deriving from the celestial bodies. the application of
Res Nullius is incapable in Corpus Juris Spatialis consequential to the existence of Article II
in the Outer Space Treaty which specifically prohibits the national appropriation of parts of
moon or other celestial bodies If one were to discard the Res Nullius principle on the basis of
Article II then one must necessarily discard the sovereign principle on the same ground. As
stated earlier the Res Nullius restriction does not apply to countries that are not parties to the
treaty. Therefore, it may be argued that non-members to the treaty may discard the provisions
of the treaty especially in light of Article IX and Article XVI of the treaty.

Res Communis is a very recent principle and is limited to the countries that ratified to the
moon treaty alone. The idea of res communis meant community property incapable of being
appropriated by any person. In the final version of the 1967 Space Treaty, res communis
principle was explicitly articulated in the Preamble and Articles I and II and implicitly
expressed in Articles III and IV. The principle of sovereignty is completely condemned by
the moon treaty. This is the most relevant principle to the concept of property ownership.

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 CONCLUSION

Space is a mysteriously empty yet filled with curiosity of the humans to conquer the skies one
day but the author believes that, for this to happen one day, we must provide the opportunity
of exploration to our private industries and should abandon the rules which states that space
is only for states to explore, as curiosity can never be appointed nor can it be expected to
work through bureaucratic channels.

However, space is a dangerous place with non-existent favourability of life, so the state being
the natural guardian has the duty to protect its citizen from the dangers that space travel
possesses and ensure rules and guideline for state to work, just as The Space Activities Bill of
2017 provides.

REFERENCES

STATUTES, TREATIES, BILLS

 The Constitution of India, 1950.

 The Space Activities Bill, 2017.
 The Outer Space Treaty, 1967.

Others

 Bhamra, Param & Dhiman, Ashu. (2021). PROPERTY RIGHTS IN SPACE AND
ANALYSIS OF INDIA’S FUTURE SPACE LAW. Turkish Online Journal of
Qualitative Inquiry. 12. 3511-3517.
 Shri, Adithya, Property Rights in Outer Space (October 10, 2021).
INTERNATIONAL JOURNAL FOR LEGAL RESEARCH AND ANALYSIS 2021,
ISBN 978-81-948082-7-5.
 R. Kelly, ‘NEMITZ v. UNITED STATES, A CASE OF FIRST IMPRESSION:
APPROPRIATION, PRIVATE PROPERTY RIGHTS AND SPACE LAW BEFORE
THE FEDERAL COURTS OF THE UNITED STATES’ [2004] 297.

 B. Shakouri, ‘Space settlement and future of space law’ (thespacereview.com 2013)

<http://www.thespacereview.com/article/2269/1> accessed 2 April 2023.

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 V.G. Pop, WHO OWNS THE MOON?: EXTRATERRESTRIAL ASPECTS OF
LAND AND MINERAL RESOURCES OWNERSHIP (1st, Springer Publishing,
2009) 3.

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