Wian Erlank, ‘Property Rights in Space: Moving the Goal Posts So the Players Don’t Notice’

Abstract:
Elsewhere in ‘Rethinking Terra Nullius and Property in Space’, I have argued that due to the changing circumstances of access to space by private entities rather than governments, the current legal situation with regard to ownership in space should be reconsidered. As it stands, ownership in space is governed by international law and currently private and even national ownership of celestial bodies is prohibited.

While (controversially) arguing for the recognition of private ownership in space, I constantly have to field questions surrounding the pragmatic assertion that since international law and United Nations treaties and conventions prohibit ownership in space, there can be no development that will allow for this. Hence, while not abandoning my purely property law-oriented arguments for recognising private ownership in and on celestial bodies, I will maintain my arguments for property rights in space and analyse a number of differing options available to private entities who would like to acquire property rights in space. As such, I purposefully avoid the maligned terminology of ‘ownership’, and rather look at various other options that still give the intrepid celestial entrepreneur some sort of property right, or even a property-like protection of their interests in space. Some examples include concessions, mining licences, prospecting rights, and certain contractual rights that could benefit from property-like protection.

The thesis is that even if ownership of celestial objects is not accepted due to the existence of various problematic dogmatic viewpoints, one would still be able to achieve much the same effect by using other property mechanisms.

Erlank, Wian, Property Rights in Space: Moving the Goal Posts So the Players Don’t Notice (November 16, 2016). Potchefstroom Electronic Law Journal, Vol 19, 2016.

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