The US Commercial Space Launch Competitiveness Act (the Space Act), which President Barack Obama signed shortly before Thanksgiving, acknowledges certain critical things regarding private enterprise and solar system resources. One of those critical things is this:
Any asteroid resources obtained in outer space are the property of the entity that obtained them, which shall be entitled to all property rights to them, consistent with applicable federal law and existing international obligations.
Naturally, others who lack the capacity to reach the asteroids (our own capacity, so far, is limited; the law was enacted in the expectation that our capacity would expand in the reasonably nearby future), demur from our new law: it violates international law, they claim. Sa’id Mosteshar, a Board Member of the London Institute of Space Policy and Law, is one such:
It is my opinion that any US entity obtaining asteroid resources would be in contravention of international law, as would the government for permitting it. The Treaties governing space activities do not give the US that right, and the US government cannot assign to its citizens rights that it does not have.
Indeed, he argues that the asteroids are
not subject to national appropriation.
Mosteshar is right, but he plainly doesn’t understand how wrong that makes him.
It isn’t government enterprise that would be doing the exploration and exploitation governed by the Space Act. It’s private enterprise.
We’ve understood since Locke articulated the concept all that time ago that governments don’t have rights to give or withhold. Already endowed in each individual one of us by dint of our existence is a set of rights. We then grant certain lesser rights, authorities, and privileges to our governments in order that those governments can do what they were created to do: protect those larger rights that are our endowment.
One of those rights is our property in our own bodies and the ownership that gives us—each of us as individuals—in the fruits of our labor. Hence Mosteshar’s correctness, which makes him so wrong. Private property rights are not governments’ to give; of course, the US government cannot assign to its citizens that right: we already have it. Private enterprise exploration and exploitation are not subject to national appropriation because it isn’t national at all: it’s…private. Private exploration and exploitation of off-Earth resources—the asteroids, for instance—in no way establishes a national claim on those resources or the results of their exploitation. It just obligates the nation to move to protect those private property rights, held by its citizens, against interference by others.
