Space as a commons : toward a framework for the allocation of extraterrestrial property rights

Abstract

This research report examines the potential nature of property rights in space and the need for the development of a cogent framework for the allocation of such rights, within the parameters set by the Outer Space Treaty of 1967. This was done in an effort to avoid the dichotomous commons dilemmas of, the tragedy of the commons, as described by Hardin (1968), and the tragedy of the anti-commons, as described by Heller (1998),(2013), whilst endeavouring to encourage the investment in and the development of, space and its resources by private operators. A review of existing literature across a diverse set of academic fields including economics, space law, and commons dilemmas, led to the development of an a priori framework for the allocation of functional property rights in space. The framework was specifically based on the work of Nobel Prize Winner Elinor Ostrom’s principles for sustainable governance of common pool resources (CPR), the observations on the nature of the anti-commons, as described by Michael Heller and the theory of the decentralisation of governance structures through the polycentric design of governance frameworks. The validity of the proposed a priori framework was tested through in depth interviews with experts in space law, policy development and space related industries. Through the reviewed literature and evidence gathered by this research, it was evident that the debate around the potential nature of property rights in space is still unresolved. However, a consensus view emerged amongst the respondents, that the bundle of functional property rights and roles proposed in the a priori framework were valid and feasibly legal, under the current OST treaty regime, with the exclusion of the polycentric design for the allocation of rights within the framework.