Dr. Shouvik Kumar Guha*


Keywords:   Blockchain – Cryptocurrency – Outer space – Property rights

The usage of outer space resources is currently subjected to the restrictions imposed by international instruments like the Outer Space Treaty, 1967[1]. In particular, Article II prohibits national appropriation of the outer space or any celestial body by any means including use and occupation, which ensures that no State can lay claim to property rights to the space or such bodies, nor prevent any other State from using the same. In addition, Article I of the Treaty addresses the exploration and use of the outer space along with right of access, Article VI requires every State to authorize and supervise all activities by its nationals in the outer space and shoulder responsibility for the same, and Articles IX Article XI mandates the States to keep the public, other States, the global scientific community, and the UN Secretary General informed of all their space-related activities, especially the ones that may interfere with peaceful use of space by other States. The application of these provisions towards the development of a property rights framework for the outer space is fraught with debates. Instances of such debates include questions like whether the principle of non-appropriation referred to in the Treaty may translate into restrictions if not outright prohibition of ownership of property rights in space, whether provisions like Article II apply to only space or also the natural resources occurring in it, whether such provisions impose any obligation on the private parties too apart from States, and whether the States themselves being deprived of appropriation power, can in reality validate any property rights claimed by their nationals in space.[2] In addition to the Treaty, the Moon Agreement, 1979[3] and recent initiatives like the Artemis Accords also bear relevance to this evolving discussion on property rights and resource usage in outer space.

Technology seems now all set to add further layers of complexity to this already complicated debate in international law. The case of the MARS4 project serves as a prime example. The blockchain project involves creating a simulated metaverse ecosystem that has been modeled on the planet Mars (data obtained from the 3D Martian Model available in the NASA database).[4] The mars4.me virtual reality platform will allow the users to experience identical planetary conditions in the metaverse. They will also be able to obtain terrestrial rights over the simulated Martian property and develop, terraform and customize such property at their discretion. Further, the owners of such property can mint exclusive Non-Fungible Tokens or NFTs that will draw upon the value of the property owned by them in the metaverse; ownership of such Mars Land NFTs (currently 99888 pieces in existence) will also generate a stream of passive income for them within the metaverse.[5] The income will be in the form of MARS$, the Ethereum cryptocurrency (Standard E) network-based currency that can in turn be used for trading and minting more NFTs within the metaverse; further, as the demand for participation in the project increases, so will the demand for NFTs and by extension, demand for this currency, which can then be traded in exchange for conventional currencies in the real world. These NFTs are therefore meant to serve both as evidence of ownership of virtual land, as well as a means of investment within the MARS4 platform. The currency is already available for purchase on cryptocurrency exchanges like SushiSwap and Bittrex, and the NFTs are going to be available for purchase from January 2022 onward.

The twin tokenomics and token redistribution (MARS$ and Mars Land NFTs) and the principles of gamification (application of elements of game design and game principles of task-based rewards to non-game scenarios including systems, organizations and services) collectively form the distinct characteristics of this entire project.[6] The project also has supposed long-term goals such as to ensure that the NFT-owners via a decentralized autonomous organization will be able to eventually control the decision-making process for the entire virtual platform, and that a foundation is established from the proceeds of the project, which will have the resources to fund space-related startups in the initial stage.

While the NFT boom is currently being perceived all across the global financial market, there are several emerging legal concerns surrounding their use[7], including the lack of accompanying intellectual property rights, the risks involved in the trading of NFTs and fractionalized NFTs that are yet to receive regulatory global recognition as valid securities (registered or otherwise), the possibility of application of anti-money laundering regulations to NFT transactions and resulting lawsuits[8], issues related to privacy and data safeguarding, possibility of reneging on royalty payments by shifting the NFT to different jurisdiction/market via digi-wallets, providing for estate and sequel planning for NFTs based on domestic laws, taxation concerns and many others. All of these regulatory concerns undoubtedly hold pertinence with regard to the MARS4 project too, as do the respective stances adopted by the multiple national regimes about applied blockchain technology and cryptocurrency.

However, this post is meant to consider the status of the project and the property rights being offered by it in the context of the outer space and celestial bodies and related property regime as envisaged under international law. While Mars is a celestial body that should fall within the ambit of the non-appropriation principle[9], the simulated version of the planet in the form of virtual reality is arguably located on Earth itself. Given the oft-vague provisions of the Outer Space Treaty insofar as even traditional property rights in outer space are concerned, and the lack of popular ratification of other relevant existing instruments like the Moon Agreement, the rights to own land in celestial bodies and to use their natural resources are contentious at best at this stage. While the power to access, use, and dispose of resources occurring in space and such bodies is not notionally against the principles that the Outer Space Treaty stands for, it is a matter of fact that the Treaty had never been meant to usher in a stable property rights regime.[10] With technological advancements disrupting even well-established legal regimes across multiple spheres, it is unsurprising that the existing space law regime appears to be considerably unprepared to deal with property rights leveraging space-based resources like the MARS4 project is purporting to do. While the broad acceptance of the Outer Space Treaty principles by State Parties have led to creation of customary law and practices[11], it becomes increasingly clear with developments like this project that predictable property rights in or related to outer space is far in the making at this juncture of international law. However, one must also acknowledge that through persistent efforts, occasional breakthroughs have been possible in the past such as the recognition of the first reasonable user principle in relation to geostationary orbit usage and according protection to such users from subsequent harmful interference via regulations of the International Telecommunications Union.

In addition, the debate as to whether virtual reality based on space objects and resources should at all be governed under the umbrella of outer space law is very much a continuing one. One may even argue that the existence of the MARS4 project does not in any way preclude other private entities establishing identical or similar metaverses about the same or other celestial bodies (assuming they get the necessary licenses to use the relevant celestial data and models) –this would make such property rights and their underlying value at least partially non-exclusive and therefore render their enjoyment non-adverse to concepts such as non-appropriation and the common heritage of mankind. While the days of Robert C. Coles and his Interplanetary Development Corporation, or Dennis Hope and his Lunar Embassy Commission selling land rights on the moon are now long past, those instances clearly taught us valuable lessons about the ambiguity and lack of predictability of the space law regime dealing with individual claims of ownership of the outer space and celestial bodies. One hopes that armed with such lessons, the legal regime applicable to the governance of outer space will proceed to evolve in an organic manner and transform possibly disruptive technological growth as evidenced by the MARS4 project into events enabling such evolution and growth.


References:

* Assistant Professor (Senior Scale), The West Bengal National University of Juridical Sciences

[1] The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967.

[2] Paul Whitfield-Jones, ‘One Small Step for Property Rights in Outer Space?’, available at <https://www.mayerbrown.com/en/perspectives-events/publications/2020/05/one-small-step-for-property-rights-in-outer-space&gt; last visited 26 October 2021.

[3] The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979.

[4] Adria Parcerisas Albés, ‘MARS4: First NFT Revenue Generation in the Universe’, available at <https://medium.datadriveninvestor.com/mars4-first-nft-revenue-generation-in-the-universe-668b26a481db&gt; last visited 26 October 2021.

[5] Id.

[6] Prabhjote Gill, ‘This Ethereum-based metaverse is letting crypto fans own land on the Red Planet, even though international space laws would disagree’, available at <https://www.businessinsider.in/investment/news/crypto-fans-can-now-own-land-on-mars-even-though-international-space-laws-would-disagree/articleshow/87188733.cms&gt; last visited 26 October 2021.

[7] OpenGeeksLab, ‘9 Legal Issues That Stand Behind NFTs’, available at <https://opengeekslab.com/blog/legal-issues-nfts/&gt; last visited on 26 October 2021.

[8] Mention may be in this instance of the Dapper Labs Complaint in New York, available at <https://www.scribd.com/document/507902741/Dapper-Labs-Complaint>last visited 26 October 2021.

[9] Thomas E. Hart, ‘Jurisdiction on Mars’, available at <https://journals.library.columbia.edu/index.php/stlr/blog/view/298&gt; last visited 26 October 2021.

[10] Kurt Anderson Baca, ‘Property Rights in Outer Space’, Journal of Air Law and Commerce, Volume 58, Issue 4, 1993, pp. 1041-1085.

[11] Alan Wasser, ‘Space Settlements, Property Rights, and International Law: Could a Lunar Settlement Claim the Lunar Real Estate It Needs to Survive?’, Journal of Air Law and Commerce, Volume 73, Issue 1, 2008, pp. 37-73.

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