Technology and Property: The Creation of Territory, Sovereignty, and the Conquest of space

Nicolás H. Varela

Abstract

Property and technology are concepts closely related to each other. Since ancient times, human beings have built the world around them using the technology they had available. Since the invention of the wheel, the plow, the crane, the plane, or the space ship; new technologies have permanently changed the way in which human beings live, build, travel and, as we will see here, the possibilities they can create to take ownership of their surroundings.

This essay will analyze the different ways in which technology allows us to explore new frontiers, and create opportunities to own new territories, questioning the concept of property, specifically land ownership, through the new possibilities that technology generates.

Introduction

It is not exaggerated to say that the history of humanity in general has been directly connected with the idea of property, especially property over a territory. Wars, revolts, colonization and independence processes have been, to some extent, the result of disputes over a territory, its sovereignty, its resources and the economic benefits that they entail. In addition, the success or failure of these ventures has depended greatly on the technological advances that one group had against the other in a confrontation. For example, the technological advance of Europe in relation to the indigenous peoples was one of the key factors in the success of the conquest of America in the 16th century. Nowadays, the recent Russian invasion of Ukraine demonstrates that sovereignty and territory remain of paramount importance even in the 21st century.

New reaches of the concept of property

Both concepts, property and technology, are very broad. We can refer to the property of an individual, a private company or a sovereign State, also, we can think of the term “technology” as any artefact, method, or technique manmade to achieve a specific result.

Historically, in order to own a territory, it had to be discovered or, if that space was already occupied, it could be bought, conquered, ceded, or inherited, just to name a few of the more common examples. Additionally, and according to the traditional concept of territorial property, it was considered that whoever owns the soil, holds title all the way up to the heavens and down to the depths of hell[1], thus granting its owner practically unlimited vertical property in the universe. However, new technologies were changing that classic concept. The development of aviation, for example, generated a debate about the ownership of the skies. In this sense, the Chicago Convention of 1944 on international civil aviation, stipulated in its first article that “every State has complete and exclusive sovereignty over the airspace above its territory” and, therefore, in the event that it is required to fly over this space, it will be require an authorization (although the upper air limit was never clearly set).

Moreover, modern construction systems allow us to extend the domain of our territory underground. In London, for example, a phenomenon has been seen in recent years where, faced with the limitation to build upwards, the city received around 6,000 requests to excavate basements to increase the size of private buildings, some excavations occupying even more land underground than on the surface[2]. Likewise, the development of underground trains in many world's capitals has in turn limited that classic concept of ownership. Therefore, day by day technology creates new possibilities and what once seemed impossible, today implies novel options to create new types of property or to question their definition.

The invention of sovereignty

During World War II (1939-1945) the United Kingdom built the Maunsell Fortresses, small offshore towers similar to oil platforms located on the east coast of England that served as a defense against possible Nazi attacks.

After the war, the forts were decommissioned, until a British citizen by the name of Paddy Roy Bates took possession of the Roughs Tower, one of the four naval towers, with the intention of transmitting his pirate radio from there. As the tower was located more than three nautical miles from the limit of English waters, Bates considered that the tower was in international waters and, therefore, outside British control, thus he occupied the platform and declared his independence, founding the Principality of Sealand as a new sovereign microstate on September 2, 1967 (Bates, 2017).

Two years later, when British workers went to repair a navigational buoy located near the platform, Paddy Roy Bates's son, Michael, fired warning shots as he believed the workers were trespassing his territorial waters. For this reason, Bates was summoned to an English court, but the judge considered that since at the time the platform was outside the limit of English waters, the case could not proceed as he did not have jurisdiction over the platform. Later, in 1975 Bates created a constitution for Sealand as well as its national flag, an anthem, its own currency and even passports for the new citizens. It also created the possibility that people from all over the world can buy a noble title from Sealand to become a Lord, Baron or Duke of this new micro-State and even buy a piece of land from the platform to support this nation and be part of it. of his incredible story [3].

Although to date no country has directly recognized Sealand as a sovereign State, we could consider that this case exemplifies one of the ways in which new technologies like an offshore platform, combined with the enthusiasm and eccentricity of a person with vision, could result in a creation of sovereignty over a small manmade territory.

Similarly, Giorgio Rosa, an Italian engineer, built another 400 square meter platform in international waters located approximately 7 miles off the coast of Rimini, Italy and in 1968 founded the Republic of the Rose Island which operated until its destruction by Italian military in 1969[4]. Subsequently, the limit of the territorial sea of the countries was expanded to 12 nautical miles, thus affecting those interested in founding their own countries given the greater depth of the new limit of international waters.

The intangible possessions

Ownership and possession are different concepts. You can own a territory despite not having physical possession of it. A landowner, for example, would continue to be the owner of his property even if he rents it and does not have possession over it. Likewise, new technologies create new types of property and therefore transform what we commonly understand by this concept. Intangible properties such as patents, trademarks or copyrights are not entirely recent. However, today technology is disrupting ownership in general and new intangible digital assets are transforming the economy. Cryptocurrencies, Non-Fungible Tokens (NFT), or the possibility of buying land in the metaverse, offer new possibilities to obtain digital properties. But in order to not make the scope of this essay too broad, I will focus here on a particular type of territory and its possibility of appropriation: the outer space.

The conquest of outer space

Since ancient times, human beings have looked at the stars, imagined their stories and tried to reach them. The ancient Greeks even warned of its risks with the myth of Icarus, in which a man used wings made of feathers and wax designed by his father to escape flying from the island of Crete, but his desire to fly too high caused that the heat from the sun melted the wax of his wings causing his death.

Just as Sealand was founded on the principle of Terra Nullius, a land that belongs to anyone, and if, as we have seen, possession is not a requirement for property, is it possible to declare sovereignty over distant places to which we may never go to, such as the moon or other planets?

We can try to find an answer in the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies” (hereinafter: the Space Treaty), which coincidentally entered into force just one month after the foundation of Sealand in 1967, and two years before man first lands on the moon. According to its article II: “outer space… is not subject national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.

Therefore, the fact that Neil Armstrong planted a United States flag when he landed on the moon, this gesture does not give that nation any sovereign right over this natural satellite. However, the treaty only mentions national appropriation by sovereign states, but makes no indication about private companies or individuals attempting to claim sovereignty over these territories. This apparent legal vacuum in relation to personal claims of the universe, has generated various initiatives by individuals seeking to take advantage of the lack of clarity of the Treaty.

In this sense, in 1980 Dennis Hope, an American businessman and self-proclaimed president of the galactic government, noticing what he considered a legal loophole in space law, wrote to the United Nations, the United States and the Soviet Union declaring himself owner of the moon and all of the planets of the solar system, and, not receiving an answer, he began to sell land on the moon and the other planets, generating multimillion-dollar profits. In addition, seeking to protect the property of its more than 6 million buyers, Hope created in 2001 its own government, the galactic government, and later its own constitution, congress, its own patent office and its currency: the delta, which requested its official recognition to the International Monetary Fund (IMF) without success.

In addition, Gregory W. Nemitz, an American who considers himself a space activist, sent a 20-dollar parking ticket to NASA in 2001 for considering that they had parked a ship "illegally" on the asteroid 433 Eros, of which he had declared to be the owner. Not receiving payment, Gregory took his case to court where the judge determined that he had no way of proving that he owned the Asteroid [5].

Similarly, in 2010 a Spanish woman name Ángeles Durán, declared herself the owner of the sun and tried to charge companies for the energy they use from the sun. She also tried to sell hectares on eBay until 2014 when the website deleted her publication, considering that it was an intangible or transportable asset [6]. The following year she received lawsuits by a group of people who, recognizing her as the owner of the sun, demanded a compensation for skin burns, eye damage and droughts that her property had generated[7].

Other companies sell a symbolic right to name stars, despite the fact that in reality the names of celestial objects are defined solely by the International Astronomical Union (IAU) who, despite some exceptions, do not give person names to the stars and much less grants ownership over them. Although, we could say that this is not a completely recent idea. As early as 1610, Galileo Galilei, seeking the patronage of the Grand Duke of Tuscany, Cosimo de' Medici, proposed naming the four moons of Jupiter that he had discovered after his family, Medicea Sidera. Though eventually the moons were named after four lovers of Zeus (Io, Europa, Ganymides and Callisto), they are also known as the Galilean satellites [8].

Despite such statements by private individuals, various experts such as Tanja Masson- Zwaan, president of the International Institute of Space Law in the Netherlands; Joanne Gabrynowicz, director of the National Center for Remote Sensing, Air and Space Law; or Gerardine Goh of the United Nations legal department, consider that the Space Treaty applies to governments as well as their citizens[9]. Similarly, the International Institute of Space Law has categorically condemned the tendency of individuals to declare the Moon and other celestial bodies as their own and to market their land, and has repeatedly requested States to reject all kinds of declarations by individuals of this type.[10]

Despite the fact that, as we have seen, possession is not an essential requirement to determine ownership, the truth is that these attempts by individuals to appropriate outer space do not go beyond the merely discursive, since their possibilities of physically reaching such distant territories, were out of their grasp. However, the case is not the same for certain private companies that nowadays are leading the development of the technologies necessaries to reach destinations outside our planet.

In 1957, when the first Sputnik satellite was launched, starting the space race between the United States and the Soviet Union, it was unimaginable that private companies could travel to outer space; despite the fact that in 1968 the Pan American World Airways announced that it would take reservations for its first trip to the moon scheduled for the year 2000, although the company went bankrupt in 1991 long before it could fulfill this promise and with more than 90,000 people registered in its waiting list for the trip to the moon.

Currently, the scenario is very different, where space development in recent years has been driven largely by private companies such as SpaceX owned by the founder of the Tesla car company, Elon Musk; Blue Origins from Amazon founder Jeff Bezos; or Virgin Galactic by Virgin founder Richard Branson. They seek to expand the horizon of humanity outside Earth, promote space tourism or make humanity a multiplanetary species. We could say that such development is generating a new space race, although this time between private companies[11].

As we have mentioned, regardless of which country arrives first on a planet, it could not declare itself as its owner (as long as it is one of the countries that has ratified the Space Treaty) but it seems not to be entirely clear what would happen if the one that arrives first is a private company as these are not explicitly contemplated in the aforementioned Space Treaty.

New challenges of space law

There are currently 5 international treaties that regulate outer space, in addition to a set of principles developed by the United Nations on the matter. However, the novel nature of this new branch of law, in addition to the constant technological developments that bring new possibilities for space exploration, generate new legal dilemmas that current legislation is not yet capable of providing a clear answer to. Making space the largest, and least regulated place of all.

In addition to the question of the ability of individuals and private companies to claim sovereignty over the celestial bodies that we have already analyzed, other arise, such as, for example: if despite not being able to claim ownership of these bodies, will they be able to establish independent forms of government on other planets or natural satellites?

An interesting case on this point has been generated by Elon Musk, where within the terms and conditions of the Starlink beta system, SpaceX's satellite internet service (which has recently been donated to Ukraine to improve its internet access after the Russian bombing to its connection infrastructures), one has to accept in order to use the system that Mars is a "free planet" and that any terrestrial authority is rejected on the activities carried out by SpaceX on Mars. A point that could conflict with the Space Treaty [12]. The terms and conditions further state that potential disputes on the red planet will be resolved through guiding principles, established in good faith at the time of the Martian settlement. In turn, Musk's legal advisers support the need for self-government on Mars and have declared that they are working on a constitution for the planet, establishing SpaceX a legal framework for a Martian government [13].

However, could we consider that Starlink was only making a joke to its users or will this have any legal consequences? It could be argued that such acceptance of the terms and conditions has no legal significance and that although SpaceX makes such a statement in its terms and conditions it does not make it real. However, the contract raises some interesting questions: If tomorrow Mars has its own native population, is it fair that they should be governed by Earthling laws? Although this still sounds like a science fiction question, there is already life in space that was not born on earth, as is the case with the flowers or plants that grow on the International Space Station, thus we have already begun to see the beginning of this space colonization and it is possible that these advances will continue to increase in the near future.

These futuristic dilemmas somehow remind us of the colonization processes that we have already seen here on Earth, where foreign invaders conquered a territory, and its population and imposed their own foreign laws on the new territories under their rule. An emblematic example can be found in the Mabo case[14]of 1992 in which the Supreme Court of Australia dealt with the legitimacy of the territorial acquisition of the British Empire, and declared invalid the concept of terra nullius that had been in force since the beginning of colonization in 1788, therefore recognized the original native rights of the Meriam people and allowing them to recover their lands.

The term terra nullius has been used throughout history to refer both to those places free from ownership (as was the case with Sealand), as well as as an excuse in European colonization processes to claim native territories on behalf of distant kings despite the fact that there were aborigines living in those territories for a long time. Similarly, today outer space is still considered terra nullius, a place that belongs to no one, although in reality it cannot be claimed by any State, so it would be more appropriate to consider it as Res Communis or Communis Humanitatis, that is, a common space of humanity[15].

Another important issue concerns the exploitation of space resources. Some countries and private companies have already mentioned their interest in extracting resources from the moon and other celestial bodies[16]. As Ian Crawford, professor of planetary science at Birkbeck, University of London mentions: "International law is ambiguous about private companies setting up mining operations in space”[17]. Another international treaty known as the Treaty of the Moon[18] of 1979, establishes in its article 11 that the Moon and its natural resources are the common heritage of humanity, however, to date only 18 countries have ratified this Treaty and among them there are not the countries with the best space programs, the ones more capable to reach the Moon.

This Treaty was criticized, arguing that by not allowing the appropriation of parts of the Moon, the development of private initiatives that seek an economic return would be discouraged. We could consider that no private initiative would want to invest enormous capital in the development of new technologies for space exploration and mining and take enormous risks to achieve this goal if they do not expect a reward for their efforts. In turn, relying solely on public funding will greatly slow down this scientific development. Therefore, in order to ensure that the resources of space belong to all of humanity, it could end up causing that commercial development in space to be discouraged, thus preventing humanity from benefiting from being a more advanced species in the exploration of the cosmos. If private activity can be (as it is today) the main promoter of space exploration, legislation is necessary to reward the private sector for its innovations and developments.

In this sense, in 2015 the United States Congress approved a law[19] that allows the exploitation of asteroids and other space bodies to both people and companies that have the resources to do so. Similarly, Luxembourg passed a law on space mining which, despite not being one of the countries with the greatest aerospace development, has shown an interest in promoting such practices.

Conclusion

As we have seen, technology constantly modifies what we understand by property, generating new possibilities never before seen that allow us today to expand this concept and seek to appropriate territories that are physical, immaterial, inaccessible or that we may never visit personally.

The scientific and technological development of the last decades has made it possible for humanity to extend its domain beyond the Earth and along with this possibility a new desire for exploration, conquest and economic exploitation is born for this new frontier of humanity. New technologies modify the law, and the concepts that the law uses to try to explain the world. Faced with the novelty of this legal branch and the constant scientific development of new technologies, new legal dilemmas emerge that require a clear and updated spatial regulation.

The lack of a clear regulation has been what allowed the development of different private initiatives that have proposed to declare themselves owners of our solar system and despite the originality or creativity of their proposals, these initiatives make legitimate claims about the problems to which we may be faced with unclear international legislation on space law.

That is why it is necessary to update international regulations to ensure that, as established by the Space Treaty in its article 1, the exploration and use of space be carried out for the benefit and in the interest of all countries, irrespective of their degree of development so that it can benefit all of mankind, without this limiting the private interest in developing the space industry and discouraging innovation. In this way, a balance must be sought to promote private activity, but prevent the domain of outer space from remaining in the hands of solely a few States, private companies or individuals and try to prevent the advent of a new kind of Icarus, where seeking humanity to reach the stars, our lack of foresight ends up causing terrible consequences for humanity.

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[1] This notion can be traced back to the 13th century and it is believed to have been the invention of Italian scholar, Accursius, making its way to English, through Accurius' son, who taught law in England at the request of the then King, Edward I. [2] Batty, D; Barr, C; Duncan, P. What lies beneath: the subterranean secrets of London's super-rich. The Guardian 7 May, 2018. Available at: https://www.theguardian.com/money/2018/may/07/going-underground-the-subterranean-secrets-of-londons-super-rich retrieved on 03/05/22. [3] Available at: https://sealandgov.org/shop/ [4] McIntosh, S. Rose Island: Netflix adapts the story of 'prince of anarchists' Giorgio Rosa. BBC News 7 December, 2020. Available at: https://www.bbc.com/news/entertainment-arts-55092341 retrieved 02/04/2022. [5] Davidson, K. Final frontier for lawyers -- property rights in space / Land claims, commercial schemes and dreams have legal eagles hovering. SFGATE. Oct. 16, 2005. Available at: https://www.sfgate.com/news/article/Final-frontier-for-lawyers-property-rights-in-2564610.php retrieved 01/04/2022. [6] Geigner, T. Sun-Owning Lady Sues eBay Because They Wouldn't Let Her Sell 'Plots' Of 'Land' On 'Her' Sun. Techdirt. Jun 11th 2015. Available at: https://www.techdirt.com/2015/06/11/sun-owning-lady-sues-ebay-because-they-wouldnt-let-her-sell-plots-land-her-sun/ retrieved 02/04/2022. [7] Hasselback, D. Spanish woman buys the Sun. Financial Post. Dec 01, 2010. April 29, 2016. Available at: https://financialpost.com/legal-post/spanish-woman-buys-the-sun retrieved 02/04/2022. [8] Davis, E. Medicea Sidera. 2004. Practical Space. Available at: https://www.practicalspace.com/jupiter/medicea-sidera.php retrieved 02/04/2022. [9] Jaggard, V. Who Owns the Moon? The Galactic Government vs. the UN. National Geographic. July 17, 2009. Available at: https://www.nationalgeographic.com/science/article/space-who-owns-moon-science retrieved 03/04/2022. [10] In 2004, and again in 2007, 2009 and 2011 the Institute of Space Law ask all States to adhere to the Space Charter and respond with firm rejection to individual declarations of ownership. [11] Grady, M. Private companies are launching a new space race – here’s what to expect. The Conversation. October 3, 2017 Available at: https://theconversation.com/private-companies-are-launching-a-new-space-race-heres-what-to-expect-80697 retrieved 02/04/2022. [12] Brown, M. SpaceX mars city: legal experts respond to “gibberish” free planet claim. Inverse. 3 November, 2020. Available at: https://www.inverse.com/innovation/spacex-mars-city-legal. Retrieved 02/04/2022. [13]Reisinger, S. SpaceX GC Talks Mars And Out-Of-This-World Legal Issues. Law360. October 14, 2020. Available at: https://www.law360.com/articles/1319833/spacex-gc-talks-mars-and-out-of-this-world-legal-issues retrieved 01/04/2022. David Anderman, general counsel of SpaceX, declared that he is working on the elaboration of a Constitution for Mars, since, according to its interpretation of the articles of the Treaty, no State can declare sovereignty over celestial bodies, but SpaceX could establish the legal framework for its self-government. [14] Australian High Court judgment in Mabo v Queensland (no 2) (1992). [15] De Gouyon Matignon, L. The Res Communis Concept in Space Law. Space Legal Issues. February 28, 2019. Available at: https://www.spacelegalissues.com/space-law-the-res-communis-concept-in-space-law/ retrieved 02/04/2022. [16] Companies such as Planetary Resources or Moon Express have announced their intentions to extract resources from the moon and asteroids. Likewise, China and Russia have announced their interest in mining helium 3 from the Moon. [17] Ali, Y. Who owns the space? BBC. 7 February, 2016. Available at: https://www.bbc.com/mundo/noticias/2016/02/160204_quien_propietario_espacio_sideral_finde_dv retrieved: 02/04/2022. [18] Also known as The Agreement that should govern the Activities of the States on the Moon and other Celestial Bodies. [19]The US Commercial Space Launch Competitiveness Act.