Space

Why You Can't Settle Mars or Colonize the Moon Without Real Property Rights

The Outer Space Treaty and other legal obstacles could block our sci-fi future.

Rainer Zitelmann | 6.9.2026 5:00 PM

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(Illustration: Midjourney/Joe Sohm/Dreamstime)

Imagine you start an asteroid mining company. It's tough at first. You know that profits are uncertain and, if they do ever materialize, it will be in five years at the earliest, maybe even ten. It takes a long time to find investors willing to trust you because several similar ventures with almost identical business models have already gone bust and the investment horizon is far too long for many. Nevertheless, you persevere, and you manage to convince a few investors.

You hire astronomers to identify asteroids with valuable metals such as platinum. You send unmanned probes to several near-Earth asteroids to collect samples. The first few turn out to be of little value. The costs are too high and outweigh any potential profits.

Then comes the breakthrough: You find a suitable asteroid, and you succeed in bringing platinum group metals all the way back to Earth. But then a group of countries files a lawsuit against you. They are all signatories to the so-called Moon Agreement of 1979, formally known as the "Agreement Governing the Activities of States in the Moon and other Celestial Bodies," which came into effect in 1984. The treaty applies not only to the moon, but to all celestial bodies, including asteroids.

Some of these countries are now demanding that you hand over a significant share of your profits to people who have never had anything to do with asteroid mining—many of whom couldn't even say exactly what an asteroid is, let alone launch rockets into orbit. They invoke Article IV, Paragraph 1, and Article XI, Paragraphs 1 and 3, of the Moon Agreement, which state: "The exploration and use of the Moon shall be the province of all mankind and shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic and scientific development. Due regard shall be paid to the interests of present and future generations as well as to the need to promote higher standards of living and conditions of economic and social progress and development in accordance with the Charter of the United Nations." So much for Article IV. 

Article XI states: "The Moon and its natural resources are the common heritage of mankind. Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person."

The Moon Agreement, since signed by 22 countries and ratified by 18, was developed to work in the same way as seabed law, and a delegate from Sri Lanka explained in simple terms what the intention was: "If you touch the nodules [valuable mineral deposits on the seabed] at the bottom of the sea, you touch my property. If you take them away, you take away my property." 

The plaintiffs now demand their "rightful share" of your profits, arguing that the platinum belongs not to you, but to all of humanity—and especially to developing countries, many of which are not yet engaged in space exploration. Should the plaintiffs win, neither you nor any other company would ever be able to attract investors again. Asteroid mining would be dead and buried after this very first attempt.

Mars Without Property Rights

Suffice it to say: Investors can remain confident, as a lawsuit based on a treaty signed by only a small number of countries is unlikely to succeed. But consider a second thought experiment: 

It is the year 2075. The first settlements on Mars have been successfully established, housing several thousand people and many more robots. The settlers are busy building underground houses and domed communities, a hospital, and other facilities. But there is a problem: Unlike on Earth, there is no private property ownership on Mars. The settlers have repeatedly attempted to establish private property rights and even create a digital land registry, but legal experts keep putting a stop to their efforts. This time, the problem is not the 1984 Moon Agreement, but the 1967 Outer Space Treaty (OST), Article II of which states: "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."

And Article I of the treaty states that the use of outer space "shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind."

In this case, the argument that the Moon Agreement has limited signatories cannot be made, as 117 countries are parties to the Outer Space Treaty—including all major spacefaring nations, such as the United States, China, and Russia—and another 22 are signatories. 

The plaintiffs assert that Article II of the Treaty prohibits not only the national appropriation of celestial bodies, but also any form of private property ownership. They further contend that Article I should be interpreted as mandating the equitable sharing of proceeds from resource extraction among all nations—an interpretation that has sometimes been put forward in the real world.

For now, let us assume their interpretation is correct. There are no property rights: Nations cannot own land (which they could potentially lease), nor can private entities, since any form of appropriation by states or private individuals is prohibited. Could such a society exist, let alone be economically successful? Of course not. 

Most successful countries permit the private ownership of land. Where this right does not exist, it is at least possible to buy usage rights from the state for 50–99 years, which can also be resold—as in Vietnam and China, for example, or (regarding the 99 years) in Singapore. North Korea is the only country where even that is not possible. Property ownership on Mars would therefore be most comparable to that in North Korea, a country plagued by widespread poverty where people go hungry after every poor harvest. Do........

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