Commercial Property Rights on the Moon

[Warren Platts]

With all the buzz going on about the rumored commercial moon landing that is supposed to take place around 2020, inevitably, there has been a renewed interest in discussing the role of private and governmental property rights on the Moon.

Although this has been hashed out before in numerous threads, a fresh thread taking into account the latest developments is perhaps warranted. At the least, this thread will reduce the non-essential chatter regarding the actual commercial moon landing.

To kick things off: in my humble opinion, the legal regime is just fine the way it is. The Outer Space Treaty as written is a libertarian, free-market utopia. We shouldn't monkey with it at all, because any cure is going to be worse than the "disease"--of which there is none. YMMV

[Lars_J]

My opinion about outer space treaties dealing with ownership: they aren't worth the paper they are written on.

Property claims that cannot be enforced are meaningless.

[RocketmanUS]

My opinion about outer space treaties dealing with ownership: they aren't worth the paper they are written on.

Property claims that cannot be enforced are meaningless.

Respecting each other. Plenty of Lunar land to go around.
Make claim to a given area for a given purpose.

1 ) Landing area
2 ) mining
3 ) telescope
4 ) base
5 ) power production
6 ) ect.

What would a given area of Lunar land be best used for. That is how it should be divided up. First come first serve with a limit on how much each entity can claim use to ( not owner ship to ) for a given period of time. This way there can be plenty for all and for future generations. It would be nearly impossible to use all the moon's surface anyway in the near term.

[aquanaut99]

Might I just remind you that there is another treaty out there: The 1979 Moon Treaty, which specifically outlaws private property rights on the Moon and "other celestial bodies".

The fact that the USA has not signed this treaty does not mean it does not exist. Several countries have signed and ratified it and this treaty was originally supposed to replace the OST.

The existence of this treaty means that the Moon is now in a somewhat similar position to Antarctica. It is considered "common property of all mankind" and to be protected from both state and private exploitation. The Antarctic treaty has also not been signed and ratified by every nation on earth, but nobody (neither state nor individual) has until now claimed any property rights on that continent, because implicitly it is considered improper to do so.

I suspect it may well be the same on the Moon and that even non-signatories will respect (or be forced to respect, due to international pressure) at least the spirit of the treaty (if not the letter).

[Warren Platts]

I'd like to see the 1967 treaty challenged and amended. If you allow private rights to certain resources, it will make the 1960s space race look like 2 guys racing go-carts. IMO...

Most unlikely to happen. That treaty was signed for one main reason: To save money for the state by removing all incentive to invest in space...

In the current climate of austerity, getting rid of a treaty whose main reason was to save money is the last thing on any politician's mind. And private enterprise does not make or break international treaties.

The 1967 Outer Space Treaty provides for private property rights as currently written. Companies like Planetary Resources are fully aware of this, and will conduct their business under the treaty.

To attempt to change the treaty would cause uncertainty in the industry, which is not a good thing.

That's interesting, perhaps I missed it. Can you point me to where it specifically provides for private property ownership? Specifically, my ability to own and manage an actual parcel of celestial land?

You've got to remember that there are two principles on interpreting the OST: there is the written "law" itself, and there is the customary law that interprets the written law in practice. It's sort of like case law in regular law: you open up a thick law book on the statutes, only to find that the majority of pages are devoted to case law that interprets the written law.

WRT your question, here is the relevent written law:

Article VIII

    A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth.

(my emphasis)

Note the bold: "Ownership of objects constructed on a celestial body is not affected by their presence in outer space."

This would seem to indicate that constructed items like installations, compounds, and designated safety zones around such facilities count as constructed objects, and are therefore subject to ownership by the people or organizations who constructed them (even governments).

So I don't see the problem.

What the OST does seem to prohibit is huge land grabs. Now, there is the Article 1 admonition: "Outer space, including the moon and other celestial bodies, is not subject to national appropriation". And a lot of people will take that to mean that governments cannot claim property, but private people can claim as much property as they want! This is a misguided tack IMO for one important reason:

There is a huge difference between national appropriation as in absorbing new "sovereign" territory, and a government merely owning land. This principle has been enshrined in US explicit law and US Supreme Court decisions for over a century. Most space law geeks are unaware of it, however. But it's a fact, nevertheless. It's how we (Americans) rationalized not giving Filipinos the vote: we owned their land, but it was never part of the sovereign territory of the US of A. Brits have a similar concept of "dominium" versus "imperium".

So the argument that the OST allows private property just because it supposedly disallows government owned property is a non sequiter: governments are not disallowed from owning land (per the conditions laid out in Article VIII)--they are just not allowed to incorporate celestial bodies into their respective sovereign territories.

For example: Newt Gingrich's proposal to send 10,000 Americans to the Moon and then make the Moon the 51st state--that is specifically disallowed under the OST on my reading. The NASA's "recommendations" to modest exclusion zones around the Apollo sites are allowed under this reading, and that seems to be how the customary law is unfolding in practice. We shall see what the future brings.

What we don't need is more regulations IMHO.

[Tea Party Space Czar]

We at TPiS also see this as a problem in the future:

Space Property Rights – the US department of State shall be directed to review and amend as necessary applicable international law to ensure the rights of all US private entities are respected, up to and including renegotiation of the 1967 Outer Space Treaty and the 1972 Liability Convention, and to reiterate US opposition to the 1979 Moon Treaty.

The government should not be regulating commerce and property claims within reason.  If Company Z lands on the moon and claims 40 acres for gold mining, who cares?  If Company Y comes in behind Company Z, lands on the moon, and then claims the entire surface - I think you could have an issue there.

There shouldn't be any collection of taxes on commerce conducted above the atmosphere.  We should encourage our richest and smartest people to invest in that economy.  It is the biggest economy we will ever have.  It will provide more jobs and create more wealth than we can all collectively imagine.

Look at how the internet economy took off when it was untaxed.  Now that we are "regulating" it you see people still make profits, but not like before.  Some would argue this is good, others would disagree.

I also think it is fair and "reasonable" to assume that the government should regulate such things as shifting the orbits of celestial bodies that could do irreparable harm to humanity on earth.  Yes, Asteroid F has $7 Trillion in precious minerals; but smacking into Chicago at Mach 31 isn't the greatest of plans either.

Reform does need to happen at some point.  It does need to favor businesses who take the risk.  However, we do need to protect ourselves from "catastrophic earth altering errors".

Respectfully,
Andrew Gasser
TEA Party in Space

[A_M_Swallow]

I see the US Government as needed to extend its laws to the Moon and other space bodies.  The new 'Living and Working in Space Act' would have to cover:

a. The issuing of mining and infrastructure permits - basic property rights.
b. Applying criminal law such as bans on murder, theft, rape and fraud etc.
c. Extending commercial law such as leases and contracts including employment contracts to space.
d. Legalising marriage and granting citizenship to people born in US areas.  Some of this may need a say lunar authority to administer.
e. Authorising policing and courts.  (The FBI could do this initially.)

[Robert Thompson]

Hypothetical question on easement in remote access areas: Suppose Company A landed at Whipple rim and at substantial expense put infrastructure down into the crater where the salable goods were, then marks off some maximum allowed regulated claim without formal ownership. Now Company B wants to use Company A's road/infrastructure to make their own claim in the resource area. Can someone speculate how an agreement would be reached on the use of the infrastructure considering that Company A does not 'own' that land. (How well can Company A gouge Company B?)

Peak of eternal light: Suppose Company A has installed their PV / concentrator arrays for X megawatts. Company C has performed due diligence to find an alternate site but cannot close their energy demand, and so wants to build in this finite area where it impinges on Company A's guaranteed MW. What protects Company A's first placement? Just looking for some general plausible concepts per the OST.

[stone]

My feeling is that the US will do it the same way like they did it in the past:

The way US paved the way for United Fruit Company will be done the same for US-XYZ company mining on the moon.
The US companies in the oil business in Irak have their own law and are independent from the Irak jurisdiction. Why should any US government restrict their possibilities to act in space?

[A_M_Swallow]

Hypothetical question on easement in remote access areas: Suppose Company A landed at Whipple rim and at substantial expense put infrastructure down into the crater where the salable goods were, then marks off some maximum allowed regulated claim without formal ownership. Now Company B wants to use Company A's road/infrastructure to make their own claim in the resource area. Can someone speculate how an agreement would be reached on the use of the infrastructure considering that Company A does not 'own' that land. (How well can Company A gouge Company B?)

Peak of eternal light: Suppose Company A has installed their PV / concentrator arrays for X megawatts. Company C has performed due diligence to find an alternate site but cannot close their energy demand, and so wants to build in this finite area where it impinges on Company A's guaranteed MW. What protects Company A's first placement? Just looking for some general plausible concepts per the OST.

The relationship between two US companies on the Moon is the responsibility of US Federal law.

U.S. CONSTITUTION

Article 1 - The Legislative Branch
Section 8 - Powers of Congress

{snip}
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

{snip}
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

{snip}
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

http://www.state.gov/www/global/arms/treaties/space1.html

Article VI

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. 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. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.

[Warren Platts]

The existence of this treaty means that the Moon is now in a somewhat similar position to Antarctica. It is considered "common property of all mankind"

Actually, the OST in Article 1 says the same thing: The Moon is the "province of all mankind". Indeed the Russian version translates literally as the "common property of mankind" just as you say.

But so what?

That doesn't mean it's an international scientific wilderness preserve like Antarctica. It just means the Moon has been claimed. The "sovereign" in this case is simply humanity as a whole.

Ever seen that book "Leviathan" by Hobbes when you were in college? Look at the cover illustration: there is a king with a crown and a sword; but if you look more closely, you see that the king is actually made up of myriads of little people. That's the principle behind the OST.

Now, just like the Queen of England technically owns all of Canada, thus making her the biggest landowner on the planet, since she is the sovereign, she can distribute property rights as she sees fit, and so we have private property in Canada.

Similarly for the Moon: the sovereign--in this case humanity as a whole--can distribute property rights as it sees fit. And under the OST, there is a mechanism: it's Article VIII. It says if you want to own something in space, then build it!

The Moon Treaty, meanwhile, was an attempt to change Article VIII. If the Moon Treaty carried any force, then you would be correct and there would be no owning real property on the Moon. But thankfully, Reagan put the kabosh on that thing.

[alexterrell]

Hypothetical question on easement in remote access areas: Suppose Company A landed at Whipple rim and at substantial expense put infrastructure down into the crater where the salable goods were, then marks off some maximum allowed regulated claim without formal ownership. Now Company B wants to use Company A's road/infrastructure to make their own claim in the resource area. Can someone speculate how an agreement would be reached on the use of the infrastructure considering that Company A does not 'own' that land. (How well can Company A gouge Company B?)

Peak of eternal light: Suppose Company A has installed their PV / concentrator arrays for X megawatts. Company C has performed due diligence to find an alternate site but cannot close their energy demand, and so wants to build in this finite area where it impinges on Company A's guaranteed MW. What protects Company A's first placement? Just looking for some general plausible concepts per the OST.

Nice questions, and something to consider with prime locations. Company A has built assets based on common land, but that has establisehed rights. I would assume if company B wants to use these assets, or take away the light, they would have to pay a royalty / fee.

The closest thing we have is perhaps FRAND?

[Warren Platts]

Hypothetical question on easement in remote access areas: Suppose Company A landed at Whipple rim and at substantial expense put infrastructure down into the crater where the salable goods were, then marks off some maximum allowed regulated claim without formal ownership. Now Company B wants to use Company A's road/infrastructure to make their own claim in the resource area. Can someone speculate how an agreement would be reached on the use of the infrastructure considering that Company A does not 'own' that land. (How well can Company A gouge Company B?)

Peak of eternal light: Suppose Company A has installed their PV / concentrator arrays for X megawatts. Company C has performed due diligence to find an alternate site but cannot close their energy demand, and so wants to build in this finite area where it impinges on Company A's guaranteed MW. What protects Company A's first placement? Just looking for some general plausible concepts per the OST.

Nice questions, and something to consider with prime locations. Company A has built assets based on common land, but that has establisehed rights. I would assume if company B wants to use these assets, or take away the light, they would have to pay a royalty / fee.

The closest thing we have is perhaps FRAND?

If you're Company A, you simply take the interlopers to court in their home country. It would be most likely a civil lawsuit, but perhaps a case could be made in criminal court for grand theft.

[RocketmanUS]

Hypothetical question on easement in remote access areas: Suppose Company A landed at Whipple rim and at substantial expense put infrastructure down into the crater where the salable goods were, then marks off some maximum allowed regulated claim without formal ownership. Now Company B wants to use Company A's road/infrastructure to make their own claim in the resource area. Can someone speculate how an agreement would be reached on the use of the infrastructure considering that Company A does not 'own' that land. (How well can Company A gouge Company B?)

Peak of eternal light: Suppose Company A has installed their PV / concentrator arrays for X megawatts. Company C has performed due diligence to find an alternate site but cannot close their energy demand, and so wants to build in this finite area where it impinges on Company A's guaranteed MW. What protects Company A's first placement? Just looking for some general plausible concepts per the OST.

Nice questions, and something to consider with prime locations. Company A has built assets based on common land, but that has establisehed rights. I would assume if company B wants to use these assets, or take away the light, they would have to pay a royalty / fee.

The closest thing we have is perhaps FRAND?

If you're Company A, you simply take the interlopers to court in their home country. It would be most likely a civil lawsuit, but perhaps a case could be made in criminal court for grand theft.

Company A would first need to file a claim on a given area.

A road to the mining ( or other use of the land ) area would just be Lunar soil with large and small boulders removes and fill in pot holes.

If company B ( or other in the future ) were to use or cross over company A's road then they would have to be responsible to fix any damages they made ( unless they were to be the last to use it in any reasonable time frame ).

So would there be fair use? Or would there be a toll? If just crossing over the road then there should be fair use and only charge if there was any damage to that part that was crossed over. Example Road A crosses over road B ( intersection ).