A few months ago, amidst Covid, newspapers in West Bengal carried reports about a man who bought an acre of land on Mars. When he brandished the title deed, the media asked whether he planned to spend his honeymoon (he was about to get married) on the red planet. Those who buy a bottle of Laphroaig also get a title deed, with a lease on one square feet of land in Islay. But Islay is terrestrial, Mars is not.
There is indeed a company (perhaps there is more than one) that sells you an acre of land on Mars with a deed registered with the International Association of Human Planetary Exploration (IAOHPE). I haven’t found anything suggesting this is an authentic organisation. But if there are people gullible enough to pay for this doubtful package (there are standard, deluxe and premium rates) and like the resultant ego trip, why not? It seems to be no different from the idea of purchasing honorary doctorate degrees from places with dubious academic merit.
Anyone who has bought land in India knows that registration of a sale deed does not guarantee ownership or title. But this is an inappropriate analogy. For registering a sale deed, the seller is presumed to possess title. For Mars, or the moon for that matter, there can be no such presumption.
While Mars is relatively new, land on the moon has been around for some time, again with deeds registered by IAOHPE, or without it. Sushant Singh Rajput was only one example. There was the German who claimed Frederick the Great gave his ancestor the moon. Interplanetary Development Corporation and Lunar Embassy Commission hawked lunar real estate.
Every science fiction connoisseur will remember Robert Heinlein’s 1949 novella, The Man who Sold the Moon. That man was a businessman named Delos David Harriman. At the time, at least in fiction, Heinlein invoked a legal maxim that has gone through extremely interesting evolution in jurisprudence. This fancy sounding Latin (law always becomes more impressive when Latin is used) maxim is, Cuius est solum, eius est usque ad coelum et ad inferos, abbreviated more simply as the ad coelum doctrine.
In plain English, a person who owns a plot of land not only has rights to the land, but also to the air above and subsurface below the land. In the novella, using this principle, Harriman persuades the United Nations to grant his company rights to the moon. With air travel (the change started with balloon flights) and now space travel, ad coelum has become circumscribed. No infinitely above and infinitely below. There are limits.
On specifics of rights on the moon, Mars and asteroids, there is an Outer Space Treaty (OST, 1967) and this covers the moon and other celestial bodies. Most countries have signed this, though some have signed, but have not yet ratified it. Article II of this Treaty seems clear enough, at least in intent. “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” All law (and legislation) is overtaken by events, just as the ad coelum doctrine eventually had to be modified.
The world in 2020 is different from that in 1967. Other than in the realm of science fiction, who would have imagined in 1967 that private companies would venture into space, or that chicken nuggets would float around in space? The likes of IAOHPE can argue that Article II applies only to sovereign states, not individual parties. If there is such a legal case, I suspect Article VI of the OST is sufficient to settle matters. “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.
The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorisation and continuing supervision by the appropriate State Party to the Treaty.” The problem with the Treaty is elsewhere. Reflecting the vintage, the OST is primarily about peaceful space exploration and limiting the Cold War in space. It didn’t anticipate property rights in space. As with land, property rights are a bundle of rights.
Ownership is only one element. Delinking from ownership, what about mining extra-terrestrial resources? There have been add-ons to the OST, such as on return of objects from space (astronauts included), international registration and liability for objects launched and limitations on what governments can do on celestial bodies. India is a party to these. But these don’t address the core issue of exploitation of resources, not always by governments, but also private companies. UN treaties are often honoured in the breach.
In any event, such a new treaty under the UN umbrella is unlikely. If the US can enact national legislation in 2015 (Commercial Space Launch Competitiveness Act, one should read what this says about space resource exploration and utilisation), why shouldn’t India? We have a space programme and private entry has recently been allowed into these. However, Indian National Space Promotion and
Authorisation Centre (In-Space), New Space India Ltd (NSIL) and Antrix Corporation require legislative backing on commercial exploitation of resources too, even if this conflicts with prior positions India adopted.
Chairman, Economic Advisory Council to the PM (Tweets @bibekdebroy)