Space Pioneers Need a New Homestead Plan

To accelerate progress in space, the U.S. should withdraw from the Outer Space Treaty

America’s space renaissance is made possible by the late twentieth century’s expansion of freedom in the space launch industry. With their newfound freedom, American companies are pushing space technology beyond what used to be science fiction. SpaceX has slashed launch costs by more than 90 percent compared to government programs. Companies like AstroForge and TransAstra are pioneering asteroid mining. Private space stations are under development. Other startups are experimenting with zero-gravity drug manufacturing. The future is here.

Far more is possible if America is willing to double down on its commitment to protect the freedoms of commercial space enterprises. For decades, space development languished under government control. NASA’s post-Apollo stagnation wasn’t merely organizational failure; it was the predictable result of the government’s attempt to control the space economy.

But there’s a looming obstacle to the expansion of freedom in space: the 1967 Outer Space Treaty.

The Folly of the Outer Space Treaty

The Outer Space Treaty declares that space exploration must be carried out “for the benefit of all countries” and forbids parties from making off-world territorial claims. The treaty was modeled on the 1959 Antarctic Treaty and Antarctic Treaty System, which forbid territorial claims and commercial activities on the continent.

The 1967 Outer Space Treaty, like the Antarctic Treaties, had some plausibility in the context of the cold war as a measure to prevent military conflict. However, both treaties enshrined a collectivist opposition to commerce fundamentally incompatible with the recognition of property rights, the essential legal protector of freedom and precondition of technological progress.

Tragically, to prevent conflict with the Soviets, the United States was willing to make a self-sacrificial compromise with the communists. The anti-commercial vision of space underlying the treaty was in line with Soviet political values, but not the values of the United States: individual rights, including property rights and free enterprise. And it is a vision that obfuscates the fact that, in fifteen years, America’s newly freed commercial industry’s pursuit of profit achieved more than the global, government-controlled industry could in fifty.

The treaty’s proponents imagine space development as a cooperative global endeavor, governed by the U.N. or something similar, open to science and exploration, but not commerce. But human life and progress is made possible through trade. Because the treaty walls off space from commerce, it chains man to Earth, allowing him only enough slack for state-approved scientific exploration.

Space, like any natural resource, is not inherently valuable: it becomes valuable only through human action and innovation. The notion that it belongs equally to all men — including those who contribute nothing to its development — undermines the very conditions needed to make space valuable to those willing to take the risks and do the work. Because our species lives by industry and trade, failure to secure the property rights of those space explorers willing to take these risks, in effect, prohibits human life from the whole universe.

Property Rights and the Value of Space

Freedom doesn’t merely require the government to get out of the way. It also requires government’s active protection.

The most fundamental economic freedoms are the freedoms to modify nature for useful purposes and to trade the products of those efforts with others. These freedoms are secured only to the extent that governments commit to codify and enforce property rights. Investment in the current space industry, for example, is premised on companies’ ownership of their physical and intellectual products (including innovations in materials science, rocket design, and manufacturing techniques). Without rights to these creations, there would be none of the exciting space achievements we’ve come to expect.

By establishing sovereignty over its territory, a government takes on the exclusive responsibility for establishing and protecting the rights of those inhabiting it, including the right to establish ownership of land and resources. And this is precisely what the Outer Space Treaty forbids.

The details of how exactly to formulate and protect property rights in space, and under what conditions to recognize them, is something that legal scholars, legislatures, and judges will have to work out in the coming decades. And this project necessarily involves the negotiation of new outer space treaties. But by forbidding signatory states from establishing sovereignty over celestial bodies exploited or settled by their citizens, the current Outer Space Treaty prevents this work from beginning.

For example, were U.S. sovereignty extendable to off-world commercial activities and settlements, America could establish a twenty-first century version of the Homestead Acts, which spurred westward expansion in the nineteenth century. The Homestead Acts recognized settlers’ ownership of land within America’s territories, provided that the settlers put it to productive use. In doing so, it enabled the spread of industry and commerce across the country, accelerating the Industrial Revolution.

The American frontier was not tamed by treating it as “the province of all mankind,” but through homesteading and private enterprise operating under the protection of property law. Likewise, space development requires a legal framework that protects the value created by space pioneers. The government’s proper role is not to control or direct space development but to protect the rights of space developers.

The SPACE Act of 2015 and the non-binding Artemis Accords attempted to address this by recognizing private ownership of space resources, but it’s an incomplete solution. Lithium extracted from an asteroid, for example, is the property of whoever extracts it. But nothing those miners do to discover the deposit, prepare the asteroid for mining, or dig the mine give them any claim on the lithium deposit itself. Even if they plan to return, they have no claim against a competitor who lands in the same spot and picks up where they left off. It’s like their recognizing the right to the crops you grow on the fertile land you irrigated and tilled, but refusing to acknowledge your ownership of the land. Had this been the extent of the Homestead Acts’ property guarantees, westward expansion would have been radically slower, if it had happened at all.

Without some kind of claim to the deposit, miners are unable to fully secure the value they’ve created. Should the investors wish to move on, they are unable to sell their claim or lease the mineral rights. And without the property rights needed to make that claim, the economic value of space exploration will remain artificially low.

Some may argue that we could update the current treaties to create a framework for ownership of unextracted resources without granting states sovereignty over space territory. This approach would be a short-term improvement, but it ignores the Outer Space Treaty’s fundamentally flawed premises. In the short term, we are talking about robotic exploration and mining. In the long term, people will follow property and the question of what law will govern where will reemerge. The treaty explicitly prohibits national sovereignty over celestial bodies — the very foundation needed to establish property rights and peaceful human settlement. It’s an unresolvable contradiction.

The current situation leaves us with the worst, anarchic elements of westward expansion without the best, i.e., without the sovereignty over celestial objects that governments need to secure the property rights of space pioneers.

Withdraw from the Outer Space Treaty

The United States faces a choice: remain bound by a self-destructive Cold War mistake or take bold action by withdrawing from the treaty and establishing sovereignty over areas where American companies and citizens operate. America must not abandon the frontier of space to the collectivist principles that hobbled last century’s space industry.

In taking this bold step, the United States would not make incorporated territories the exclusive province of Americans, but of American law. Foreign entities could own property and engage in commerce in American space territories as they do now within the terrestrial United States. But they would be able to do so with the protection of American law.

It’s notable that one of the most innovative space launch companies, Rocket Lab, was founded in New Zealand, but conducts its operations under a U.S. subsidiary, Rocket Lab USA. If you want to protect what you’ve built, there is no better place to do it than in America and no better guardian than American property law.

The benefits of establishing American off-world sovereignty for anyone considering an investment in space would be immense. With secure property rights, private investment would increase dramatically. Companies could confidently develop lunar bases, exploit lunar resources, or discover and extract asteroid resources without fear that their work would be appropriated. Rights to resource deposits could be bought and sold, further increasing their value and, therefore, investment. This investment would create new opportunities for entrepreneurs to drive technological advancement and hasten profitable human settlement beyond Earth.

The path forward is clear: the United States must withdraw from the Outer Space Treaty and establish a legal framework for extending its sovereignty to enable a fuller recognition and protection of off-world property rights. It must leverage its current space dominance to reshape international space law around the values that made America’s success possible: freedom and property rights. Only then can we unleash the full potential of human expansion beyond Earth.

Image Credit: peepo / E+ / via Getty Images