Who Owns the Universe?
A well-worn trope of science fiction has humans colonising the Moon, Mars, asteroids and imagined planets in far-off solar systems. On Earth, 18th and 19th century adventurers who claimed remote lands for their home countries have been controversial for their impact on indigenous societies, the environment, and the distribution of wealth, but even quite recent works like Patrick Ness’ Chaos Walking trilogy (2008-2010) and subsequent movie (2021) depict humans arriving on some celestial body, declaring the body under new management, and getting on with the action—which often enough involves conflict with indigenous inhabitants and/or other humans with their own ideas on management. Might more enlightened adventurers of the future act according to some principles of ownership more robust than simply planting a flag and backing it up with force where necessary?
On Earth, ownership of land is a complicated history of migration, conquests, dispossession, squatting, land sales and inheritance. The International Court of Justice hears disputes over national boundaries (if the parties don’t fight it out with armies) while the court systems of individual nations hear disputes over ownership of land within nations.
In space, however, no one can hear you claim possession. The Outer Space Treaty, adopted by the United Nations General Assembly in 1967, starts in part that:
Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. (Article II)
Furthermore:
Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies. (Article I)
If nations adhere to the treaty, those Moon and Mars colonies will exist in a legal limbo in which no one owns anything, and everyone has access to everywhere. The United States, at least, has already made moves to bring outer space mineral resources into private ownership: according to a controversial provision of the Commercial Space Launch Competitiveness Act (2015), US citizens who take resources from space become the owners of the removed resources—so asteroid miners can take ownership of the stuff they mine, even if they can’t own the asteroid itself.
It is assumed that nations might be willing to modify the Outer Space Treaty, or at least that science fiction can imagine they will. ‘Outer Space Authority’ is used as shorthand for whatever system exists (apart from wars) for settling claims over celestial bodies—this could be an international body established by treaty; a world government or department thereof; or even a Galactic Hyperspace Planning Council staffed by Vogons.
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One widely-cited academic study identified nine categories of justification for claims to territory brought to the International Court of Justice, with the six most common being treaty law, uti possidetis (inheriting boundaries from a predecessor state), effective control over the territory, historical right, geographical features, and cultural homogeneity. The other three are that the territory is a necessary part of the economy of the nation, that the nation has an inherent right of conquest (‘elitism’), and that the nation has an inherent right to certain land (‘ideology’). The Court typically applies treaty law first, then uti possidetis, then effective control.
Without any existing treaty law or states dividing up outer space, an authority following the Court might go straight to effective control, meaning that sovereignty goes to whoever is able to impose its laws on the land. This may sound like might-makes-right; but it has a certain practical appeal in that a government that can’t exercise effective control over a territory isn’t much of a government. The basic model of a science fiction colony might indeed come about this way: a spaceship full of colonists arrive and, there being either no life on the planet at all or native life unable to resist, the colony assumes sovereignty.
Galactic overlords like Ming the Merciless presumably appeal to an inherent right to rule. The classical expression of this view is the divine right of kings, but colonial powers of the 16th through 19th centuries developed a new form of elitism by which the colonial power assumed responsibility for ‘improving’ the land through establishing agriculture, trade, and so on. In this view, technologically sophisticated societies have a right and a duty to spread the bounty that their technology brings.
Science fiction from The War of the Worlds (1898) to Terra Nullius (2019) has imagined the consequences of this sort of ‘improvement’ for less technologically sophisticated indigenous societies. In the case of a celestial body with no inhabitants, however, distributing ownership to whoever can make the best use of it has some utilitarian appeal. Many present-day economists, for example, argue for a land tax that would encourage productive use of land rather than simple occupation of it. We can similarly imagine mineral-rich bodies being auctioned off to the asteroid miners best able to extract the minerals, or if the ‘best use’ is a non-economic one like conservation, assigning bodies to non-profit organisations with the expertise to manage them (more on this later).
Finally, while no (human) history or culture exists in outer space now, it’ll begin the moment the colonists arrive, and we can easily imagine communities with common histories or cultures claiming sovereignty over the area covered by those communities. The difficulty here is establishing where one community ends and another one starts—geography can help—but even after hundreds of years living next to each other on Earth, many communities still appeal to their armies or the International Court of Justice to determine who owns what.
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Before considering how an Outer Space Authority might divide up outer space, consider who it might distribute ownership to. Does it have to be a national government, or can private individuals or corporations assume ownership of a celestial body without a pre-existing government?
Assuming ownership of one’s own private asteroid might sound liberating, but real ‘micro-nations’ declared by private individuals remain only curiosities because no court recognises such claims. An adventurer who refuses to acknowledge the Outer Space Authority, for example, can’t very well appeal to the same authority when a second adventurer turns up wanting a piece of the same celestial body, or refuses to pay taxes set by the first adventurer. So, anyone without a significant army, or otherwise beyond the reach of anyone with whom they might have a dispute, must largely abide by the decisions of the Outer Space Authority.
Nonetheless, the Outer Space Authority could choose to recognise private claims if it wanted to, effectively creating new states. Such states might range from the science fiction equivalent of ‘settler societies’ like Australia and Canada that have become independent of their colonial powers, to company-states like the one that runs Mars in Total Recall (1990) or utopian communities like Ursula Le Guin’s The Dispossessed (1974)—not to mention refuges for wealthy individuals distancing themselves from the hoi polloi on Earth a la Ben Elton’s Stark (1989).
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So far as we know, no life exists—even microbes—that might claim prior ownership over any celestial body within reach of Earth’s current technology. History has plenty of examples in which land held in common or not owned at all has been divided amongst private owners, with principles and outcomes likely to be relevant to any division of outer space, be it between national governments or private individuals.
In colonial Australia, the infamous terra nullius doctrine put the New South Wales Government of 1788 in something like the position of an Outer Space Authority dividing up outer space: as far it was concerned, it had a whole continent of vacant land, and a bunch of settlers and emancipated convicts to apportion it to.
At first, the British Colonial Office empowered Governors to grant tracts of land to settlers and convicts, and Governors implemented various schemes for selling or renting land, preferably to people who were going to ‘improve’ it. In 1831 the Colonial Office ordered the colony to instead auction land within a defined area around Sydney, with the funds being used to finance more immigration from Britain.
Settlers who occupied land beyond these limits became known as squatters. Though squatting was initially illegal, squatters prevailed upon the British Government to grant them legal tenure over the land (known as ‘runs’) they occupied in 1847, transforming what had been lawless adventuring into a ‘squattocracy’ of wealthy landowners.
If control of outer space goes to whoever is first to arrive and establish effective control, it’s easy to imagine ‘space squatters’ with access to spacecraft gobbling up desirable celestial bodies before non-spacefaring powers have a chance to establish any claims, like a solar-system-themed Monopoly board that leaves the first space farers with all the land and everyone else owing them money.
In 1861, New South Wales Premier John Robertson introduced what became known as the Robertson Land Acts, allowing settlers to purchase relatively small parcels of Crown land—known as selections—without having to formally survey them first. Would-be landowners purchased selections on a first-come, first-serve basis on the condition that they reside on the land for three years and bring it into agricultural production. It’s easy to imagine similar schemes for dividing up celestial bodies in a more or less fair way—or at least a more orderly one.
Outer space need not be divided into neat packages belonging to sovereign nations, or to individual persons within nations. On Earth, the ‘high seas’—the parts of the ocean beyond the territorial waters of any nation—get by without being subject to any sovereign power, and so might interplanetary space. Most countries reserve land for public or environmental use, such as public utilities and nature reserves, and even the owners of freehold land don’t enjoy absolute power over it—such land is still subject to planning laws and, in some cases, governments will resume ownership of land for public purposes.
Land need not even be strictly divided between public and private uses. Elinor Ostrom shared the 2009 Nobel Prize in Economics for her studies of how societies around the world have managed access to communal resources like forests and fisheries, such as limiting the number of animals that any one farmer can place on the common grazing area, or the number of fish that any given fisher can extract from the ocean. Dune (1965), for example, might have gone much better for the Padishah Emperor if he’d allowed Fremen tribes to each extract a quota of spice instead of granting a monopoly on the stuff to one of a pair of feuding families.
In Australia, mineral ores are considered to be owned the state and federal governments, who charge mining companies royalties on the ore that they dig up. In this system, mining companies profit from the value they add by digging up the ore and bringing to market, while the public receives the value of the ore itself, which nobody created. States with sovereignty over celestial bodies might similarly lease these bodies to asteroid miners or space farmers rather than transferring ownership outright.
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Now consider planets already inhabited.
The first question might be: what counts as ‘inhabited’? If humans arrive to find a planet inhabited only by microbes or plants, or by creatures that might evolve into ‘intelligent’ lifeforms millions of years in the future, do humans owe them any rights of ownership?
We might adapt thinking from the environmental movement here, which holds that the natural environment has value in its own right. Earth-bound nations enact various laws for the protection of the environment within their borders, ranging from limits on pollution and human encroachment on the habitats of other species, to the creation of national parks and even the granting of legal personhood to Te Urewera National Park in New Zealand.
In Kim Stanley Robinson’s Mars trilogy (1993-1996), for example, the ‘reds’ campaign to preserve Mars in its pre-human-colonisation state, against the ‘greens’ who want to transform Mars into something more comfortable for its human inhabitants The titles of the books give away the winners of the debate, which happens as much by accident as by design.
Someone who held that the pre-human environment should never be interfered with would presumably remain on Earth, or at least make only passing observations of other worlds, making the question of ownership moot. Less strict adventurers still wishing to avoid the sins of their 18th century forebears, however, might first think to implement a simple bar on interfering with celestial bodies already inhabited. Star Trek’s Prime Directive appears to say it plainly: ‘No starship may interfere with the normal development of any alien life or society’—yet web sites list endless examples in which the Enterprise and its successors do exactly this.
A more permissive Outer Space Authority still might allow trade and cultural contact but prohibit conquests or other forms of coercion. On Earth, for example, developed countries don’t refuse to engage with developing countries for fear they might ‘interfere with normal development’—but the former do (mostly) ask permission before entering the latter’s territory. And how did Star Wars’ Mos Eisley Tavern, or indeed the bridge of the Enterprise, come to be populated by creatures plucked from all over the universe if they’d all piously refused to interfere with each other?
Exactly how they might establish cultural contact is a trope for another day. 18th century adventurers and their indigenous counterparts may not have shared any language or cultural conventions, but they were at least members of the same species and understood that the other had language and culture. Who knows whether Solaris (1961) minded human scientists puttering around on its surface or spying on it from orbit?
Finally, if alien life is to be allowed to carry on its normal development, how much space does it need? Are humans free to assume ownership of anything outside an alien lifeform’s current habitat on its home planet, or should humans assume that said life might one day ‘normally’ occupy the whole planet (as humans have done), its whole solar system (as space agencies are already thinking about), or its whole galactic sector (as space operas imagine humans will)?
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Lest we get too excited about dividing up space, though, let’s put the shoe on the other foot. Imagine the disappointment of human miners who, upon taking up their selections in the asteroid belt, find that some alien civilisation has already made off with the valuable ores. In fact, if the universe is anything like The Hitchhikers Guide to the Galaxy (1979) and numerous others with civilisations lurking under every rock, maybe there’s nothing left to own.
