Property Rights in a Vacuum: A Moon Anarchist’s Guide to Prospecting

Soon there will be private industry on the moon, but the question of how property rights will be apportioned, transferred, and adjudicated is still unanswered. Further complicating the matter is the founding document of space law, the Outer Space Treaty, which disallows sovereign appropriation of space resources but remains silent on whether the same prohibition extends to private companies. Since the ratification of this seminal document, no major legislation has been passed except for the “Space Act,” a U.S. statute that takes the decidedly pro-American-business stance that the Outer Space Treaty’s silence on private appropriation was intended to be permissive rather than prohibitive. The Artemis Accords, drafted in 2020 by NASA and signed by eight developed countries, comports with this view. This Note looks at how U.S. companies might be able to honor the spirit of the non- appropriation clause while still creating opportunities to transact business on the Moon. It begins with a historical overview of Western ideas of property, including a discussion of the relational aspects of property rights and the tragedy of the commons, as well as a brief discussion of the Mining Law of 1872 and the concept of pedis possessio. The Note then advocates for an approach that combines the “multiple use” permitting system employed by the Bureau of Land Management with the enforcement mechanism of a self-regulatory organization, as well as dispute resolution inspired by international arbitration.