Until the advent of air travel (first by balloon and later airplanes), landowners were said to own not only the surface of their land but also the ground beneath it and the air above it (cuius est solum eius est usque ad coelum et ad inferos). This broad definition would have required airlines to acquire easements along their flight paths had it not be narrowed by courts. It is one of many examples of how courts have been practical rather than ideological when faced with new technologies whose adoption would have been slowed or made impossible by a strict application of traditional property doctrines.
I suppose we should not be surprised that with the emergence of commercial space travel that some are calling for recognizing private property rights in space. Rand Simberg has authored a new study for the Competitive Enterprise Institute on “Homesteading the Final Frontier”. He calls for a federal law that would recognize private claims to extraterrestrial property in order to encourage private investment in reaching and exploiting resources located on the moon, asteroids and other planets.
Simberg believes that the 1967 Outer Space Treaty only precludes claims of national sovereignty not private claims. The 1979 Moon Treaty does prohibit private claims in space but the United States is not a signatory to this treaty which is unsigned by any of the countries capable of space exploration. Advocates of space exploration and human settlement on other worlds have applauded Simberg’s analysis.
It will be interesting to see whether space ends up being treated more like Antarctica as a commons for all or like the Western Hemisphere after its discovery by Europeans as a blank slate available for divvying up (of course, that involved ignoring the presence of millions of Native Americans and their long established property regimes).