Who Owns The Moon?
Lunar property rights, Economist
“According to the United Nations Outer Space Treaty, signed by every space-faring country, no nation can claim sovereignty over Earth’s lunar satellite. 102 countries have entered into to the 1967 accord; China joined in 1983. But space law scholars debate whether the Treaty actually implicitly prohibits, or allows, private ownership on celestial bodies. Some commercial companies, such as Bigelow Aerospace, are hoping to use the ambiguity of the treaty’s language to their advantage. Founded in 1999 and based in Las Vegas, the firm aims to manufacture inflatable space habitats. It already has an agreement with NASA to expand the International Space Station in 2015 using its flexible modules, and also to devise a plan for a privately developed, NASA financed, lunar base architecture.”
See Robert A. Heinlein, “The Man Who Sold the Moon” (1951)
for an early read on this topic.
I’d be happy to allow people to make land claims on the Moon, provided they produce some substantial modifications to it.
So…. under what legal framework would private ownership exist if the “land” in question is not part of any territorial body and no government has jurisdiction? On Earth your ownership rights are protected by the power of the state, which usually has an army as an instrument of last resort. Do they imagine lunar homesteaders with weapons to protect themselves from invaders? Or just assuming that no one will ever actually care?
If you mess with my stuff on the Moon, I’ll mess with your stuff on the Earth. In court, probably.
The attackers face the same restrictions. If they are state-sponsored, their State is in violation of the treaty by operating military forces on the moon. If they are non-“Military” armed rival settlers/miners/etc, then their State is still wholly responsible for any damages they cause (even if the aggressors are not government employees.)
If the aggressors disclaim any national sovereignty, ie, they are pirates… (space pirates… on the moon…) then the State of the attacked settlers could presumably send armed security. (Calling them “Police” not “Military” might keep them clear of the treaty.)
And if both groups disclaim Earthly sovereignty, then they are indeed on their own. But since they are not signatories of the treaty, they can at least call their military/police/security/etc whatever they want.
[Interestingly, in the event of State vs State sub-“military” conflict on the moon, prisoners of war might not possible. The treaty demands the return of “rescued astronauts”.]
“In practice it [i.e., Moon Treaty] is a failed treaty since it has not been ratified by any nation which engages in self-launched manned space exploration or has plans to do so (e.g. the United States, some member states of the European Space Agency, Russian Federation, People’s Republic of China, Japan, and India) since its creation in 1979, and thus has a negligible effect on actual spaceflight. As of 2013, it has been ratified by 15 states.”
… and the Outer Space Treaty simply “limits the use of the Moon and other celestial bodies to peaceful purposes and expressly prohibits their use for testing weapons of any kind …”.
So what limits are there on me or anyone staking a lunar mining claim?
“So what limits are there on me or anyone staking a lunar mining claim?”
I think that is the question Bigelow is trying to have answered with his FAA filing. He says there should be none, as long as the US gov’t approves. I agree with him, but we will see what happens.
Since the Moon Treaty elaborates on who can’t make claims…
“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. “
…but the Outer Space Treaty doesn’t. So borrowing the legal principle “an exception that proves the rule” [*], it seems to me that you could argue that by not specifying anything other than “national appropriation” in the Outer Space Treaty, and then adding all the other crap in the later Moon Treaty, they’ve defined that the OST is indeed limiting only national claims. (Otherwise why would additional restrictions be required in the Moon Treaty.) This is especially reinforced by the statement “The provisions of this Treaty shall apply to the activities of States”.
[* Not the colloquial meaning. In common law, if a law is defined by an exception it also defines an implied general rule. So, for eg, a parking sign that says “Parking permitted between 7pm-7am” is telling you that parking is not allowed outside of those times. The exception (parking at limited times) proves the existence of the rule (parking outside those times is not allowed).]
There is also the requirement that nations retain “jurisdiction” over anything launched into space. Including jurisdiction over “objects landed or constructed on a celestial body, and of their component parts”, which might be argued includes bases, mines, etc. Ie, any modified site.
However, people could argue that any system to recognise claims within national law is the same as making territorial claims by that same nation (“by means of use or occupation”). And thus is a violation of the treaty.
The gripping hand is that nations define ambiguous language in treaties however the hell they want. If Japan wants “scientific whaling” to mean it’s allowed to sell whales commercially, then there’s nothing anyone else can do about it. If the US (or China) wants to define “national appropriation” as not including mining claims, then there’s nothing anyone else can do about it.
The Moon Treaty is a failed treaty … period. Who cares about what’s in it?
Lawyers. When things are specified in the MT but not in the OST, it may legally imply that the broader limits (ie, on claims by non-government entities) were not intended to be covered by OST.
It allows nations to justify narrowly defining the “national appropriation” clause, or broadly defining the “jurisdiction” clause.
When the OST is amended add a clause repealing the Moon Treaty.
Ownership is not the only way land can be controlled by a company. The land could for instance be rented or leased.
Assuming mining and settlement building count as ‘activities’.
Article VI says “… The activities of non-governmental entities in outer space, including
the Moon and other celestial bodies, shall require authorization and
continuing supervision by the appropriate State Party to the Treaty. ..” So governments can authorise. Possibly by issuing a licence.
Under Article XI the Secretary-General of the United Nations has to be informed about any activities. So send him a copy of the licence.
“Renting” and “leasing” imply an owner, which implies a claim of sovereignty.
“Licensing” is probably the best loophole, it also fits the “Jurisdiction” clause (article 8).
Hey, if you have a Winchester Phaser and know how to use it, then whose to argue with your claim? 🙂
“For schemes in space (such as mining fusion fuel from the moon, a perennial favourite of wild-eyed space cadets)…”
Ha-Ha! Better get my sunglasses to hide my eyes. 🙂
Folks:
Nothing in the treaty say one can’t own a part of the Moon.
Territory on Earth has been claimed by control or conquest for as long as we’ve been around.
Why should Lunnitory be any different?
Let’s just do it and see transpires!
tinker
In other words someone with an ASAT capability based on the Moon or Cis-Lunar space. Which in theory can also tale out anything in Earth orbit.
Something as simple as a solar power mass driver launcher. Echoes of Heinlein. By the way I don’t see any difference between space flight and ballistic missile technologies.
Just don’t see how the governments of Earth can have long term control of other celestial bodies with residents that is self-sustaining.
However the language used is the same as that for international waters; which was apparently the intent, that outer space be treated the same as international waters. So legal precedent already established over “the law of the sea” would exclude your attempt to backyard-lawyer around the language of the OST.
Paul:
I agree completely! That’s a great analogy.
tinker
Seems like the Moon is very similar in concept to Antarctica, and the Antarctic Treaty which has protections but which also allows for territorial claims would be a good model for the Moon. Even though the Antarctic Treaty as well as the several related treaties have not been ratified by all nations, they have been ratified by enough of them that I would think that it would be very difficult for a someone from a non-participating nation to get away with for example starting a mining operation in Antarctica.
Of course that is one difference in practice that unlike Antarctica, most likely any future Moon treaties will allow for mining or other commercial activities, probably within some type of guidelines.
Agree. The Antarctic Treaty has worked reasonably well for decades, and serves in effect as a form of constitutional government, with the proviso that government is by consensus of the parties to the treaty, People can work or even live in Antarctica, if they wish, and a few families apparently do so. If the parties to the treaty wished to do so, they could exploit the resources of the continent, but this is unlikely due to its value as a unique scientific and ecological resource.
We really need to get beyond the Outer Space Treaty with
respect to economic activity. Don’t bet on the Chinese being bound by its terms which in effect require the UN to approve of or be notified about spaceactivities. The US is not a signatory to the Moon Treaty and no other space faring country is either. Supporting the Moon Treaty now would nip any hope of economic activity in the bud. Space is an area where the US can and must reassert its leadership role. If others want to follow or conduct economic activity, fine. We ignore this leadership role at our peril, especially if a country with China’s ideology takes up the mantle. They will surely shut the rest of the world out. If a US based company wants to establish operations on the moon, so be it. The original European colonizing companies didn’t work out so badly did
they ? Lets just do it !
what about asteroids? and relocation and destruction (mining) thereof?
“and other celestial bodies”
I thought Dennis Hope and the Lunar Embassy owned the moon. He has been selling it off for decades. Even the Republicans give him awards for doing this.
“Recently Dennis Hope and the Lunar Embassy have been presented a wonderful acknowledgment from the Congress of the United States.
Mr. Hope has been named co-chairman of the Republican Congressional Business Advisory Council. He has also been given the National Republican Leadership Award and most recently he has been issued the highest honor the National Republican Congressional Committee has, the prestigious Republican Gold Medal.”
http://www.lunarembassy.com…
Its not gonna last and probably isn’t being honored right now.They want the helium-3 and other minerals.
http://www.youtube.com/watc…
The reason that the treaty was not ratified by the actual space-faring nations was recognized pretty clearly at the time — the non-space-faring nations, the vast majority, worked to have wording included which would severely limit what the treaty would allow. The basic idea was that since all the little guys couldn’t have the things that space offered (simply because they didn’t have the capability), they were going to make sure that the big guys (who did have the capability) weren’t going to get those things either. This resulted in a treaty that the space-faring nations could only reject.
I think that at this point in history there’s a pretty wide agreement that the Moon Treaty and Outer Space Treaty are not suitable for what is required. Even updating them isn’t an option; they need to be completely replaced. Unlike many other people, I don’t see how any of the existing Earth-based treaties (including Law of the Sea and Antarctica) could be successfully used or modified to do the job of a treaty for lunar operations or any other space operations. They were developed for a different set of requirements, and at a time when the world was a very different place, economically, politically and technologically.
Although the UN may be involved in the process, it does not have the international acceptance to act as a force of law in this situation. The development and acceptance of a new “treaty” would, I think, have to be a voluntary cooperative effort with signatories brought on board through diplomatic means. Because most, if not all, of the world is still driven by nationalistic thinking and habits, such a cooperative effort would require either major concessions or a minor miracle by many nations to happen. It seems to me that we need to individually and collectively get our own houses in order before we go trying to make new treaties and/or laws for controlling off-Earth activities.
Also, now as then, more attention needs to be paid to cooperative lunar/space programs between one or more nations, and between one or more nations and one or more non-government (commercial) organizations. Finally, the “rules” for things like retaining claims, abandoned holdings, and salvage need to be spelled out.
Personally, I think that developing a usable, effective treaty is not all that difficult. Getting the various nations and commercial entities involved to buy into it will be the hard part — not because of the treaty content but because profitless national politics will continue to get in the way of the common good.
Don’t throw the baby out with the bath-water. The OST is not that far from usable. We want outer-space to be mostly like international waters: non-territorial, free for all travel; except an obligation to rescue those in distress, liability for damages, an obligation to not create hazards, and retention of ownership of unmanned objects.
Think of the alternative: We don’t want nations to extend air-space claims into orbit, or arbitrarily claim whole orbits. Nor do we want a free-for-all on interfering with other nations’ satellites, etc, or not being responsible for damage that their actions cause. (Hell, I’d make that liability much stronger in Earth orbit, to include a explicit responsibility to remove dangerous (disabled) satellites/etc.) Should the US have been able to claim the entire moon for all time just because they stuck a flag in it? Or the Russians after Luna 2? And should the Russians have been able to claim LEO after Sputnik 1 or Gagarin’s flight? Should the US have been able to claim GEO/GSO after Syncom 3?
The basic principles of the OST are sound, and much preferable to the alternative. We just need to solve the issue of settlement and mining on physical bodies. And even there, the OST seems a reasonable jumping off point.
(The Moon Treaty, otoh, is based on entirely an unworkable (anti-progress) premise. It needs to die in a fire and never be spoken of again except as a warning to others.)
I hear what you’re saying, Paul, but I’m still of the opinion that none of the existing treaties — or the general concepts that they’re based on — will be sufficient or effective in space.
Granted, there are some similarities, such as “claiming” an island in the middle of the ocean, but not being able to “claim” the ocean or any part of the ocean that must be traveled to reach the island. You might, depending on future developments, be able to “claim” the resources of an asteroid, or even the asteroid itself, but you can’t claim the trajectory the asteroid travels, any part of space that either the trajectory or the asteroid occupies, previously occupied, or will occupy in the future. (Let’s leave the actual definition of “claim” open for now.)
However, there are major differences between an ocean and a volume of outer space, not the least of which is the ability (by some yet to be identified authority) to enforce any laws and/or treaties put into place. Without the ability to be enforced, and with no means to hand down consequences, those laws and treaties become meaningless and make the situation worse instead of better.
I firmly believe that if you attempt to massage a copy of an existing treaty into a new space treaty you’ll find that the massaging will go on forever, with no satisfactory outcome. The situation requires a requirements-driven solution, which means starting from scratch, although the original scratch may certainly borrow from lessons learned from existing treaties.
There are lots of other issues I could raise, but at the root level I see three major challenges. First is the content of whatever treaties/laws are adopted; second is the ability to enforce those laws/treaties and render appropriate consequences when they are violated; and third is proposing and getting accepted a means for getting all involved parties (government and non-government) to ratify and abide by the treaties/laws. This latter issue must also deal with how to treat those who refuse to play nicely with others or accept the laws/treaties. The overall goals should include enabling every party who wants to be involved in developing and using space, as opposed to concentrating on restricting those with a head start simply because everybody can’t be space-farers at this point in history (as was done in the past).
I think that a sensible and effective set of laws/treaties for space can be developed, but it must start by defining, in detail, exactly what we need them to achieve, and then designing processes that will lead to those results. Reworking an existing treaty developed for a different set of requirements will not, I believe, yield the results we need. There are no short-cuts.
This is just how I see it, of course.
How is that a difference? Does the UN or World Court have a navy? A water-police/coast-guard to enforce treaty rules?
Treaty nations are all on Earth. They are bound by the same mechanisms as any Earthly treaty, including those relating to the Law of the Sea.
Very few treaties contain enforcement mechanisms. In general they are about diplomatic legitimacy or moral authority, which is apparently important in international disputes. Notice how many border disputes include ridiculous elaborate historical justifications? Likewise the stupid arguments over sovereignty over uninhabited islands or even reefs; to the point of stationing some poor mug on a platform on top of a reef in order to “justify” the claim. Not just, “we want this territory and we are taking it”, which is what it really is.
And the bickering over whether a captured military patrol was over a border. If they were, the patrol nation will generally not respond militarily, even when it’s the US. If they weren’t, the situation will inevitably escalate.
Likewise how much effort is made to justify an invasion. Take the US invasion of Iraq. No other nation could physically stop the US, and none would risk reprisals by trying. The US had veto power over a security council resolution. So why did the US spend so much time trying to justify its case? (Similarly Russia’s invasion of Georgia; they were “defending Russian ex-patriots” in Sth Odessa, and totally not demonstrating their renewed power to other former soviet republics flirting with joining NATO/EU.)
Violating the OST (or a future version) would be the same. In practice, it’s not like the UN has the ability to evict, or defend, lunar settlers. But if one nation interferes with the lunar or asteroid activities of another, does the victim have the (diplomatic) authority to respond militarily on Earth? Is it considered justified by other nations?
I’m not explaining myself well. In a nut shell, what I believe is absolutely necessary is a mechanism that will ensure that these things you hold up as similarities, and similar situations, are prevented from happening, as much as possible, in and from space — or as a last resort are penalized and bring about restitution in a reasonable, mutually accepted, and fully pre-defined manner that is appropriate, in each case, to the offending action.
Getting away with something simply because you’re bigger and stronger than the other guy is not an acceptable situation in my mind. The current and past management of territorial and resource disputes on Earth, including in claimed sovereign airspace and off-shore waters, is not effective. Undertaking an aggressive action knowing you can “be excused” afterward simply by paying some sort of compensation to the abused party is not diplomacy; it’s a joke, a political free-for-all.
On Earth, on land or in the ocean, an aggressor is a) for the most part fully visible to the rest of the world given modern technology, and b) can generally damage another party primarily through the use of openly demonstrated force involving unmistakable weapons. In space actions are much less visible and don’t necessarily require weapons, large or small. Dropping a rock on someone or covertly sabotaging his environment systems can be equivalent to a missile strike, but can be called an accident, or an act of God, and no one can prove differently unless the perpetrator just happened to be caught in the act. Public school rules are not going to work on a University campus.
I think we could argue specific cases for a month and not come any closer to more of an agreement. I follow what you’re saying and grant you that the logic is sound, but — call me a pessimist in this case, I guess — I just don’t see how retrofitting any of the existing Earth-based treaties and laws would properly cover all of the non-similar situations that could arise. And the consequences of “misbehaving” have to match the possible “crimes,” in terms of both applicability and severity, or there will be no deterrent effect, resulting in the same situation we have on Earth where people do as they please in exchange for a mere diplomatic slap on the wrist afterwards.
Space is too important to our race’s future, and too full of potential for large-scale harm, intentional or otherwise, to be allowed to fall prey to the half-measures and atrocities that have adversely affected life on Earth for so long. I guess I paint an ugly picture of the situation, but I think our future welfare requires the proverbial ounce of prevention. This is, of course, just how I see things; we have an opportunity to do things better, in a more planned fashion than what has evolved over time on the lands and oceans of Earth. It would be convenient and expedient if an existing set of Earth treaties and laws could be either adopted or adapted for space use, but if things were that simple I think it would have been done long before now.
To me the concept of ‘owning’ the Moon is a fantasy until someone has the ability to sustainably crew and operate a facility (or, even better, many facilities) there and do not have competitors also able to do so. ‘Ownership’ of the Moon would then be a self-evident fact – The Moon would be owned by the entity that has access to the place when no one else can do so.
After multiple providers have lunar surface access in the required form (establish and sustainably operate a surface facility) then things get a bit messy. It’s at that point that you need to start talking about ‘borders’ and ‘airspace’.
You would be be crazy to think you could own the moon, the moon owns us all, it’s your daddy.