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John Batchelor Hotel Mars, Wednesday, 11-18-15 November 19, 2015

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John Batchelor Hotel Mars, Wednesday, 11-18-15


Special Guest:  Michael Listner

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Guests: John Batchelor, Michael Listner, Dr. David Livingston. Topics: Commercial Space Law Act 2015 & asteroid property rights. You are invited to comment, ask questions, and discuss the Space Show program/guest(s) on the Space Show blog. Comments, questions, and any discussion must be relevant and applicable to Space Show programming. Written Transcripts of Space Show programs are not permitted without prior written consent from The Space Show (even if for personal use) & are a violation of the Space Show copyright. We do not permit the commercial use of any Space Show program or part thereof, nor do we permit Space Show programs to be edited, placed on YouTube, or other private channels & websites. Space Show programs can be quoted in news articles, papers, academic & research work but must be cited or referenced in the proper citation format. Contact Dr. Livingston for questions about our copyright and trademark policies which we do enforce. This program is archived on The Space Show website, podcasting, and blog sites with permission from John Batchelor. Please visit the John Batchelor Show website for more information about this fine program, www.johnbatchelorshow.com. Remember, your Amazon Purchases Can Help Support The Space Show/OGLF (www.onegiantleapfoundation.org/amazon.htm). For those of you listening to archives on live365.com & rating the programs, please email me the reasons for your rating. This will definitely help improve Space Show programming. Thank you. Please note that audio and transition issues are a result of copying the John Batchelor broadcast & are not within my control as they originate in the Batchelor studio.


John Batchelor and I welcomed back Michael Listner, space attorney, to discuss the recently passed Commercial Space Law by Congress. This law included a section on asteroid mining that may be an effort to convey to US citizens space property rights. Property rights are not permitted by the UN treaties and Michael said that the new law was sufficiently vague between conveying a property right as opposed to a use right which is allowed in the treaty. Michael and others believe it conflicts with the treaty but many within the industry and space enthusiasts believe this is important as it sets a baseline to improve upon in terms of property rights for the future. Michael also suggested it might be good for the asteroid mining companies as they can show their investors that there is now a basis in law which might help with getting new investment. I asked Michael if international space players would care about this or if it the provisions were enforceable outside the US. Michael suggested they would care because it granted these “rights” only to US citizens and they would likely object to it. John made several references to pirates and corporate plunder but I did not agree with those descriptions. What do you think? Let us know on the blog.


You can email Mr. Batchelor or Bill Harwood through me at drspace@thespaceshow.com.


1. robertinventor - November 25, 2015

Michael, I’ve been discussing this with US friends, I’m from the UK. And it turned up what seems to be a difference between US and UK ideas about this.

They say that in the US that individuals have rights to things that the government doesn’t. The government then by supporting them is saying that it won’t prosecute and will even support them in their claim of right to these assets.

But in the UK, then everything belongs to the crown originally which then cedes rights to individuals. It made no sense to me at all with my UK background as how can a government cede rights to assets it doesn’t have.

So it would seem that this is a law that could only be passed in the US. Because most countries like the UK can’t legislate on rights that they don’t themselves have. And they can only have those rights themselves through owning territory in space, which is prohibited by the OST.

So this idea of passing it as a law in the US in order to encourage other countries to pass similar laws and then work it out from that seems doomed to failure to me, if that’s the case. Because no other country unless it has the US system of legislation can either pass such a law or recognize its validity.

It also seems to go against the “common heritage of mankind” in the Outer Space Treaty which would seem to require an international authority to hold the rights to the assets and to manage them.

That though is just discussion amongst friends who are accustomed to different legal systems and none of us are lawyers. What do you think of this as a lawyer, is this an accurate summary – or are there differences in legislation something like this? Can you say a bit more about the differences in legislation between the US and other countries like the UK, and clarify if I’ve got it wrong.


Michael J. Listner - November 28, 2015


I appreciate your concerns. I will preface my response by saying I am keeping a lot of my more nuanced opinions and analysis close. With the signing of the bill into law, this is real and any specific analysis or legal opinion I make will be made in a privileged communication. In other words, you have to buy the book.

That being said, I will address a few of your points:

1) It’s important to distinguish the Outer Space Treaty does not specifically reference the “common heritage of mankind”; that language is specifically mentioned in the Law of the Sea and the Moon Treaty. While the United States is a signatory to the former, it is not a signatory to the latter. Rather the OST is couched in terms of “the province of all mankind”, which has subtle differences from “common heritage”. It is this nuance and not Article II that the proponents of the new law are focusing on.

2) Your concerns and understanding about property rights are correct, and I believe that you’re spot on about legislation of property rights and their interaction with the OST. While the UK has a parliamentarian form of government akin to ancient Greece, the United States has a republican form of government akin to ancient Rome. That being said, neither legislative body can grant a right in property that it doesn’t already possess. This new law is spinning a different narrative than creating property rights, but that is indeed what it does.

3) I will be appearing on the Space Show December 13th, and I am sure this topic will come up. I may or may not answer specific questions about this about this portion of the new commercial space law, but I will consider beforehand what I feel I can divulge without showing my hand.



robertinventor - October 28, 2016

Michael, thanks for your reply. Sorry for the late response. I only just discovered it while responding to another comment by someone else (on the singularity hub) and it said you had replied to me here, don’t know why I never saw it before.

Right thanks for drawing attention to the difference between “the province of all mankind” and the “common heritage of mankind”. I knew that the Moon treaty had a different approach from the OST, and I’ve heard talk about the “common heritage of mankind” as a sticking point but hadn’t realized it was a different phrase in the two treaties, I thought it was a matter of interpretation of the phrase and not having the lawyer’s attention to details of phrasing of the text.

I understand now. I’ve also read that although the US is not a signatory to the Moon Treaty, that it is the only international treaty we do have to guide interpretation of the OST and that it may therefore have some force even on non signatories at least until we have new treaties agreed to clarify the situation, not sure how true that is.

I understand that as a lawyer you may need to be careful in how you talk about newly enacted legislation.

This phrase was very interesting “That being said, neither legislative body can grant a right in property that it doesn’t already possess. This new law is spinning a different narrative than creating property rights, but that is indeed what it does.”

and helps me understand things a bit better too.


2. Michael J. Listner - November 20, 2015

Reblogged this on Space Thoughts and commented:
This isn’t the greatest Hotel Mars segment I’ve done, and I think John got a little carried away with “space pirates” and what-not. Not a lot of time to discuss a complex topic, but such is the nature of talk-radio.

3. Michael J. Listner - November 20, 2015


I appreciate your thought and zeal on this matter, but it’s not as easy as that. I will attempt to address your concerns:

“I think that there needs to be a distinction between different types of property.”

There is a distinction between different types of property, but consider what property really is. One legal case I read sets out ‘property’ as an aggregate of rights that are guaranteed and protected by government. In the ordinary sense, the term ‘property’ is used to indicate the thing itself rather than the rights attached to it.

With that basic legal definition, property can be divided into two basic subgroups: real and personal (in legal circles it’s called chattel property).

Real property is any property that is attached directly to land, including the land itself. It not only includes buildings and other structures attached to the land , but also rights and interests, including rights to resources affixed to the land (like timber, water, etc.) and resources within the land (oil, gas, water, minerals etc.).

Personal property is distinguished from real property in that that personal property, unlike real property is movable. That is, the asset is not fixed permanently to one location as whereas real property such as land or buildings is.

“Real property in space is the real problem.”

You are correct because without a real property interest, it is unfathomable to create a personal property right in resources. Consider that in some cases real property can become personal property. For example, timber that affixed to the land is real property, but if the timber is harvested, it becomes personal property. The key is before the timber is turned into personal property, the individual harvesting the timber must have a real property interest either in fee or a real property interest in the land granted by the owner in fee through an easement, a license, etc. If an individual turns a resource affixed to the land into personal property without an underlying real property interest in the land, then that individual is culpable for conversion, which is any unauthorized act that deprives an owner of personal property without his or her consent.

“What I would like to suggest is the solution is to limit the countries on earth to being on earth yet to allow new countries to develop off earth when enough people settle those locations to the point where they vote to become their own separate political entity.”

I don’t agree. This is going around the real property problem instead of addressing it. Moreover, the current body of space law and the present state of geopolitics makes this more unpalatable than real property rights. The simple fact is, once settlement starts those settlement (let’s stay away from the term “colonies”) will be dependent on the nations they originate from for supplies, new personnel and other logistical support. With that in mind, until these settlements become self-sufficient they will be dependent to and subject to the jurisdiction of the nations of their origins. That is not to say your idea does not have merit, but settlements forming their own sovereign nations is going to require a evolution of the geopolitical environment and by extension of the law that will take decades if not a century from present.

4. DougSpace - November 19, 2015

I think that there needs to be a distinction between different types of property. One type of property is what one lives on. A second type of property is an object. I don’t know if there are already terms that are used to distinguish between the two types. But I will call the first type real property as in real estate. The second I will call tangible property although I suspect that there’s a better term. Real property is defined by legally recognized boundary lines. Since governments are usually defined as having jurisdiction within a certain boundary, there does seem to be a relationship between a government’s borders and those real properties owned by individuals within those borders.

Both types of properties are owned by the owner and so there is an exclusiveness of use. However, real property restricts the free movement of others and so is in a way different.

I think that this is relevant because we can easily imagine people working in space harvesting and extracting material which, because they put in effort and risk into obtaining it logically ought to own that tangible property.

Real property in space is the real problem. I can understand how the countries during the 1960s and even now would be leery of countries on earth staking sovereign claim over real property in space. Rich countries could own undeveloped property in space making the rich richer and the poor poorer. Also, it could initiate negative competition between countries rushing to achieve exclusive claim on territory such as the lunar poles. One can easily imagine actual wars if there are disputed boundaries since this is a common cause of wars on earth.

Yet at the same time, it seems unreasonable to say that forever in the future individuals or companies won’t be allowed to own real property in space. Ownership of real property forms the basis for the incentive in investing in the development of that property whether mining or someone’s home.

What I would like to suggest is the solution is to limit the countries on earth to being on earth yet to allow new countries to develop off earth when enough people settle those locations to the point where they vote to become their own separate political entity. However, this could lead to wars if the people living within those areas disagree about the nature of their new country. To prevent this, I suggest that before anybody starts moving there, national boundaries be drawn such as on the moon so that when people move to some certain location they will have an idea of what sort of country that will be based upon the majority of people living within those boundaries. So, for example, if there are a whole lot of libertarians living on the western half of the South Pole of the moon, then I really should not have any reason to complain when they vote to become a country based on libertarian principles.

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