by Rainer Zitelmann
The next great battle over property rights may not be fought on Earth, but on the Moon, Mars, and the asteroids beyond.
Yesterday, SpaceX went public in what was by far the largest IPO in history. As for the long-term prospects, the IPO prospectus stated: “We believe that our current space efforts will catalyze transformative breakthroughs that could reshape terrestrial industries and lead to the emergence of new trillion-dollar markets on the Moon, Mars, and beyond.”
Exactly how such trillion-dollar markets might emerge is not explained in the prospectus. One crucial prerequisite would be the establishment of private property rights on celestial bodies. For example, if a company such as SpaceX were able to acquire land on Mars, it could later package that land into REITs and list them on stock exchanges. This would open up extraordinary opportunities. The prospectus avoids discussing this issue because the legal situation remains unclear.
The Outer Space Treaty (OST 1967) established the primary international legal framework for all activities conducted in outer space. The decisive factor in determining whether private property rights apply is Article II. Legal scholars have put forward differing viewpoints over its interpretation. The primary area of contention revolves around the “prohibition of appropriation” and whether this applies only to the states expressly mentioned in the Treaty or also to private individuals and companies not mentioned in Article II.
Those who argue that appropriation by private individuals is prohibited assert that private ownership would infringe upon the freedoms of access, exploration, and use guaranteed to all states in Article I. If private property rights existed, argues space law expert Marcus Schladebach, this would impinge upon the freedoms granted to all states, and the legal status of outer space as a “global commons” beyond territorial sovereignty would be jeopardized.
In contrast, other legal scholars argue the exact opposite: national sovereignty stops where outer space begins, which means that national appropriation of the Moon, other planets, and asteroids is forbidden—but not the private ownership of celestial bodies. This interpretation rests on the legal doctrine expressio unius est exclusio alterius: the explicit mention of one thing implies the exclusion of others. If, for example, a statute or treaty expressly mentions one or more things of a class, it is only reasonable to conclude that others of the same class remain unrestricted by that statute or treaty.
Other legal scholars, however, argue that while it is not forbidden for private individuals or companies to claim property, it is a crime for a nation to recognize such a claim publicly. This interpretation, however, confuses the terms “recognize” and “confer,” as the legal scholars Alan Wasser and Douglas Jobes explain: “‘To recognize’ means to ‘acknowledge the existence, validity, or legality of’ or ‘accept, acquiesce to, or decide not to contest.’ In contrast, ‘to confer’ means to ‘grant (a title, degree, benefit, or right).’”
They go on:
If a nation claims the right to confer, give, or grant title to lunar land, it could be violating the ban on national appropriation. But if a settlement is established and the settlers claim private ownership of land around their settlement, and a dozen of Earth’s nations recognize the settlers’ claim, it is not reasonable to say that all dozen nations are trying to appropriate the land and thus are violating the Outer Space Treaty.
Still others argue based on various provisions of the Outer Space Treaty, which, for example, hold states liable if a rocket launched by a private company from their territory crashes in another country. Furthermore, they claim, states are obligated to authorize and supervise the activities of private companies located within their territories. From this, they conclude that, even if not explicitly stated, the Outer Space Treaty prohibits private appropriation.
Wasser and Jobes rightly object to this:
But the treaty clearly does not contain any language explicitly saying that states may not authorize their citizens to do anything that they themselves cannot do, contrary to what some authors appear to assume. The treaty does not say that what is prohibited to states is therefore prohibited to private entities nor that what is prohibited to the regulator is therefore always prohibited to the regulated. A baseball coach gives “authorization and continuing supervision” to his players. Does the fact that the coach is not allowed to run onto the field to catch a fly ball mean the players he supervises cannot either?
The wording of Article I of the Outer Space Treaty states that outer space is “the province of all mankind” and that celestial bodies should be “free for exploration and use by all states without discrimination of any kind on basis of equality” and “there shall be free access to all areas of celestial bodies.” Critics argue that this turns space into a public good whose owner is everybody and nobody.
This ambiguity of the OST stems from the priorities of the United States and the Soviet Union at the time of the OST’s drafting. Their primary focus was on preventing an arms race in space and the deployment of weapons of mass destruction there. The concept of private space companies, including business models that would allow private companies to engage in asteroid mining, was a distant prospect in 1967. Consequently, the issue of private ownership was secondary for both nations. So they did what national governments sometimes do in joint international declarations or treaties: they kept the language vague and omitted contentious issues, which is what leads to the difficulties in interpreting it today.
I suspect we will witness a situation similar to the settlement of the American West, when squatters created facts on the ground and appropriated land that was only later legalized through the Homestead Act and other legislation. Of course, you cannot write something like that in an IPO prospectus—the lawyers would be horrified. But lawyers have rarely been the ones who determine the course of history.
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Rainer Zitelmann is the author of the new book New Space Capitalism.
Source: https://amgreatness.com/2026/06/13/property-rights-in-space-the-missing-piece-in-the-spacex-ipo-story/
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