Transporting a Legal System for Property Rights: From the Earth to the Stars

I. INTRODUCTION By the year 2020, humans will return to the moon and do much more than simply explore its surface. It is anticipated that an infrastructure will be developed to encourage space tourism and commercial operations. The effective use and management of the moon, Mars, and other celestial bodies and their resources are integral to the economic development of space and the expansion of business and industrial enterprise there. In January 2004, President George W. Bush announced his vision for the future of space exploration and the development of space resources and infrastructure. This vision is infused with "A Renewed Spirit of Discovery"1 aimed at exploring the moon, Mars, and beyond.2 It also encourages space-based commerce and industry. Later that month the President created the Commission on Implementation of United States Exploration Policy ("Commission"). This Commission held public hearings and heard testimony from individuals in industry, education, media, and various agencies and professional organizations3 on ways to expand space exploration, discovery, and commercialization by private entities. In June 2004, the Commission published numerous recommendations in its final report, including ways to streamline and reorganize NASA.4 These recommendations called for greater reliance on private industry in space operations, reducing NASA's involvement "to only those areas where there is irrefutable demonstration that only government can perform the proposed activity."5 The Commission also addressed ways in which the government could engage private industry and expand commercial involvement in space. Specifically, the Commission recommended: [T]hat Congress increase the potential for commercial opportunities related to the national space exploration vision by providing incentives for entrepreneurial investment in space, by creating significant monetary prizes for the accomplishment of space missions and/or technology developments and by assuring appropriate property rights for those who seek to develop space resources and infrastructure.6 Space holds the promise of vast new opportunities and untapped resources. The Commission recommends that the United States encourage and accelerate the economic development of space. The Commission report lists several incentives that will likely entice private industry to invest their resources and capital in space ventures. Specifically, Recommendation 5-2 recommends that Congress increase the potential for commercial opportunities related to the national space exploration vision by: 1) providing incentives for entrepreneurial investment in space; 2) creating significant monetary prizes for the accomplishment of space missions and/or technology developments; and 3) assuring appropriate property rights for those who seek to develop space resources and infrastructure.7 The Commission suggests creating a one hundred million to one billion dollar prize to be offered to the first private entity to place and sustain humans on the moon for a specified period of time.8 One incentive has already been shown to spark "entrepreneurial investment" in space technologies. In October 2004, the non-profit X-Prize Foundation awarded a ten million dollar Ansari X-Prize to the spacecraft SpaceShipOne for achieving suborbital flight twice within one week.9 The Commission report estimates that over four hundred million dollars was invested by competitors in developing their technologies, which is a forty to one payoff reward for the development of this technology.10 Corporate sponsors, including M&M Candies, paid an estimated two million dollars to have their logos on SpaceShipOne. Richard Branson, CEO of the Virgin Group, which includes Virgin Airlines and Virgin Records, reportedly agreed to pay up to twenty-one million dollars over the next fifteen years to provide spaceships and technology for a proposed sub-orbital space airline, Virgin Galactic. …