I am now in a hotel in South Carolina on my way down to Florida to start the SSP program on Saturday. So look forward to some interesting posts from there. I'm excited to get the opportunity to meet and work with such a diverse group of space professionals. In the meantime, I believe I promised some comments on Simberg's white paper.
Since I know some of my readers are casual space enthusiasts, I will summarize the salient points. Mr. Simberg proposes that the 1967 Outer Space Treaty (OST) does not prohibit the recognition of property rights in space. He supports the passing of legislation that would enable the US to quietly recognize such claims from any private entity, regardless of citizenship, so long as certain conditions were met. Furthermore, the US would not be obligated to take any actions to defend these claims against other nations. To make things clear from the very beginning, I disagree. I am not alone in this. James Dunstan, who has far greater credentials than I, put forth his own white paper in response.
My thoughts: Foremost, I think the terminology used by Mr. Simberg is disingenuous. The proposed legislation, as I read it, does not create a property right at all. By describing it as such, I believe Mr. Simberg is concealing some of the more important areas of the discussion. A property right has no value if it does not protect your interests from third parties. To grant a property right, a nation must have sovereignty or control over the property in question, otherwise the grant is meaningless. Assuming that the legislation is not intended to be meaningless, what would actually happen under this proposal is that the United States would essentially promise not to take military or other action to remove a private party from a portion of a celestial body. Ignoring space law for the moment, and acknowledging that I am not a Constitutional scholar, I have serious concerns that such a piece of legislation would be constitutional. This is because it appears to be an attempt to limit the President's commander-in-chief and foreign affairs powers.
Assuming, arguendo, that there are no US constitutional impediments to the legislation, the OST remains a problem. The OST prohibits national appropriation of outer space and celestial bodies through any means. Remember also that nations are responsible for the space activities of their nationals. If we accept that the US would not actually be granting a property right, but rather refraining from enforcing the provisions of the OST against appropriation, then it couldn't really be accused of appropriation itself unless the private party were its own citizen (I'll get back to this issue in a bit). There are no provisions of the OST that require a State Party to take actions enforcing the Treaty. If China were to claim the entirety of the moon tomorrow, the US would not be required to respond. That is a political decision. However, I believe that passing a law stating that the US would systematically ignore repeated violations of the Treaty's provisions would very much go against the object and purpose of the OST. All signatories to a treaty have the minimal obligation of not violating a treaty's object and purpose.
And here I apologize for my imperfect memory. I believe that Mr. Simberg, subsequent to publishing his white paper, responded to my next point, but I do not remember the specifics of his answer. Basically, there is the issue that while the US could choose to ignore the actions of foreign private companies, it can not do so for its domestic entities. This is because, as mentioned above, States are responsible for their nationals and such private claims to a property right would constitute appropriation in violation of the OST. I believe Mr. Simberg responded that while such an interpretation is possible under the treaty, such an outcome would be preposterous. [If anyone has a citation/quotation for any of this response your comments would be appreciated.] However, that was preposterous in the idea that the US could grant a property right to foreigners but not its own citizens. But since the US wouldn't actually be granting a property right at all, it is not preposterous that the US could ignore violations by other nations, but not those committed by its own nationals.
My final concern with the proposed legislation is a practical/political one. Whether the legislation violates the OST or US Constitution, or neither, I do not believe that it would be a good idea. I am not saying that the space regime should not be made more ready for commercial enterprise, but that this is not the way. As difficult as renegotiation of parts of the OST may be, it is the proper way to reach a new agreement. By proceeding unilaterally in this manner the US risks placing itself at a severe disadvantage. If this legislation were implemented, it would essentially require the US to recognize the appropriation of portions of outer space by other nations. But there would be no reciprocal protection for American companies. If the US is recognizing all such claims by foreign private entities, then it would be in other nations' best interests to bargain amongst one another to divvy up portions of outer space while challenging any attempts by US companies to do the same. While this could certainly force the issue of arriving at a clear interpretation of the OST, I do not believe it is in America's best interests to go about it in this way.
I hope I have not mischaracterized anyone else's arguments. If I have, feel free to correct me in the comments section.