Bigelow: Moon Property rights would help create a lunar industry

[R7]

Article VI limits the behaviour of ACME MMC.  It will need a licence to mine the Moon.

Yes, but any nation with credible ACME MMC would probably licence it to give it a try.

What is missing is a way of preventing two countries from issuing licences for the same area of the Moon.

Articles IX, XI and XIII give tools to handle that. Requirements to announce intentions/activities to other parties, ability to request consultations if interference suspected and call for resolving issues in suitable organizations (UN etc) or direct negotiations with the other party.

Do not be surprised if the second company is run by its president's brother-in-law.

Don't care if it's run by president's pet dog as long as something concrete and interesting happens up there instead of powerpoint space activity. If it's Yutu X mining polar volatiles for a lunar noodle shop then so be it.

[Warren Platts]

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.

1. ACME Moon Mining Company making a lunar property claim is national activity.
2. National activity of making lunar property claims is not in conformity of articles I and II.
3. OST State Party must make sure that national activities are conforming to all articles.

Prey tell where the logic fails or how the result is still ambiguity regarding ACME Moon Mining Company.

#2 is a false premise.

There is an important distinction that goes back to ancient Roman law between sovereign territory (imperium) and mere property (dominium).  Moreover, the US Supreme Court has repeatedly ruled that it is possible for territory to belong to the US without being part of the US. Similarly, there is a long tradition of the US government recognizing the private property claims made by private citizens of previously uninhabited territories. Thus, so long as private property claims do not take the additional step of asserting national sovereignty, such claims do not violate Articles I and II.

[ChrisWilson68]

The relevant article of the Outer Space Treaty is article XVI:

Any State Party to the Treaty may give notice of its withdrawal from the Treaty one year after its entry into force by written notification to the Depositary Governments. Such withdrawal shall take effect one year from the date of receipt of this notification.

[R7]

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.

1. ACME Moon Mining Company making a lunar property claim is national activity.
2. National activity of making lunar property claims is not in conformity of articles I and II.
3. OST State Party must make sure that national activities are conforming to all articles.

Prey tell where the logic fails or how the result is still ambiguity regarding ACME Moon Mining Company.

#2 is a false premise.

There is an important distinction that goes back to ancient Roman law between sovereign territory (imperium) and mere property (dominium).  Moreover, the US Supreme Court has repeatedly ruled that it is possible for territory to belong to the US without being part of the US. Similarly, there is a long tradition of the US government recognizing the private property claims made by private citizens of previously uninhabited territories. Thus, so long as private property claims do not take the additional step of asserting national sovereignty, such claims do not violate Articles I and II.

Going to respectfully disagree. Articles I and II aren't just about claiming sovereignty. Article I speaks of retaining free access for anyone to anywhere to explore and use, which claiming a private property would violate. Article II speaks of national appropriating also "by any other means", staking a mining claim strongly seems to be one such method.

Doubtful that the Guano Island Act from 1856 could apply here. There's no bird poop on the Moon. 

Also note that it isn't just what US courts would think, it is an international treaty.

[Warren Platts]

I think one thing we must agree on is that the OST is logically consistent within itself. IOW, it is not blatantly logically inconsistent. Therefore, any provision in Article I or II must not contradict whatever Article VIII or whatever says.

Article VIII says that artifacts constructed on the Moon may be owned. This thus contradicts a reading of Article I or II as saying that property on the Moon cannot be owned. Therefore, the reasonable interpretation of Articles I & II is that free access shall be granted to all first comers; but not that first comers must share their wealth with the late comers...

Note also that Article I says that exploration and use of space shall be done in accordance with International Law. Well, what exactly is that? Well, the fact is that there is not a settled International Supreme Court of last resort. Thus, it boils down to what is called "customary law". In this regard, the recent NASA document described at length here on this website:

http://www.nasaspaceflight.com/2011/09/protecting-apollo-sites-future-visiting-vehicles-nasa-evaluation/

is very important IMHO. Yes, I know that one or two of the engineers here will point out that it offers nothing but "recommendations". As if the ability to do a bit of calculus grants blanket wisdom in all other areas.  But that is BS. When NASA issues a "recommendation", it's like when Don Corleone issues a "recommendation". Choose to not follow it at your own risk....

Granted, no NASA thug is going to break your legs (in theory at least: albeit NASA does have it's own SWAT teams, and it's own counterintelligence spooks). But then again, if you want to do business with them in the future, are you really going to go vandalize their historical sites? I highly doubt it....

More importantly, the NASA document explicitly cites the so-called "Property Clause" of the US Constitution as the justification for their "recommendations".  This is the part of the Constitution that was cited by the so-called Insular Cases that I keep talking about.

Bottom Line: It is possible to own and control land without necessary  national appropriation by means of sovereign claims....

[Robert Thompson]

OST: "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.
...
Article XII. All stations, installations, equipment and space vehicles on the Moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited."

Here's what I do not see futharked in adamant. There are national activities and there are activities of non-governmental entities. Where does Bigelow fall if he wants an operational exclusion zone around his inflatables, and presumably his solar collectors? Even if he couches the imperative of his lunar base as a national priority, it is not, according to this treaty, a national activity, but falls squarely under activities of non-governmental entities. What is his chain of command? This treaty says that his chain of command is not directly to this Treaty but "shall require authorization and continuing supervision by the appropriate State Party to the Treaty". There is a layer or buffer of authority there.

Secondly, it's eminently reasonable that an encapsule system have a buffer zone of safety around it, like the ISS does, and that this encapsule system has, just for its own existence, a normal operations that deserve the clause "assure safety and to avoid interference". So by the letter of the Treaty, Bigelow shoul have the ability to declare what his zone of normal operations are under the standing permanent agreement and understanding that at any time, with "reasonable advance notice", someone else may temporarily interfere with or inside of his zone of normal operations.

So sure, Bigelow talks 'lunar property rights', but the very first step before such an end game is to have some firm guidelines on the normal operations of something as precarious and complicated as a series of inflatables. I'd draw lines in the sand right there. Lunar property as we know it on earth is an 'advanced topic', but porting working exclusion or safety zones to a regime with no any-time return is a great start.

[A_M_Swallow]

Creating a Federal Government Agency, or department of an existing agency, to issue permits and licences is a job for the US Congress and President.

Having clauses in lunar licences that required the company to create safety zones and to respect other company's safety zones is fairly easy.

[R7]

Article VIII says that artifacts constructed on the Moon may be owned. This thus contradicts a reading of Article I or II as saying that property on the Moon cannot be owned. Therefore, the reasonable interpretation of Articles I & II is that free access shall be granted to all first comers; but not that first comers must share their wealth with the late comers...

I've understood that the word "property" in the context of this thread refers to mainly undeveloped land area and meant it that way when written. That way there's no contradiction. Interesting borderline cases will emerge though. For instance say you discover really valuable spot of some ore regolith. Per OST you can't own the area it resides. But you are not prevented from scooping it into an artificial heap. It can be argued that said heap is an object you constructed, therefore own it. Still not technically owning the area the heap takes but effectively via "harmful interference" mentioned in Article IX. But you can scoop that up too into ore processing facility along with the heap.

Fully agreeing with last sentence, first come first served. Next one needs to make sure not interfering the first.

Note also that Article I says that exploration and use of space shall be done in accordance with International Law. Well, what exactly is that?

It's again in Article III, specifically mentioning the Charter of the United Nations. I guess it's more about human rights, how to legally proceed in cases where individual commits a crime and so on.

Bottom Line: It is possible to own and control land without necessary  national appropriation by means of sovereign claims....

Owning is a so-so but controlling yes, by means of having real activity up there which is protected from harmful interference by Article IX. The difference is academic while ACME MMC is mining but if it goes bankrupt, operations seize and site abandoned then your interference claim shrinks from operational base to arguably historic site. Yutu Enterprises can then come to scoop up the same ore vein as ACME MMC provided that it's not right under ACME MMC's installations. If it were YutuE would probably make ACME MMC's creditors an offer for the ownership of them, effectively paying for right to mine despite causing direct "historical" interference. Lawyers would have a field day arguing the area and value of ACME MMCs abandoned site.

[R7]

Here's what I do not see futharked in adamant. There are national activities and there are activities of non-governmental entities.

IMO you are trying to make a difference where there isn't such. The scribe appears to have wanted to decrease tautophony and save ink by shrinking "national activity" to just "activity" further in the article text.

"national activities ..., whether such activities are carried on ... or by non-governmental entities"

[Robert Thompson]

Here's your take. Your scribe has "non-governmental entities" performing "national activities". This interpretation strangles private agency in its crib, because it staples the lips of any insistence that a private corporation's private shareholder dollars are NOT performing "national activities". Who is the State to dictate that the profit-seeking actions of private enterprise have zero context outside the explicit service to the State?

OST: "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 national 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 national 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 national 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]

Here's your take. Your scribe has "non-governmental entities" performing "national activities". This interpretation strangles private agency in its crib, because it staples the lips of any insistence that a private corporation's private shareholder dollars are NOT performing "national activities". Who is the State to dictate that the profit-seeking actions of private enterprise have zero context outside the explicit service to the State?

I think the reasonable interpretation is simply that all activities conducted by non-governmental entities are by definition "national activities". The State isn't there to dictate anything. To insist that activities are NOT performing national activities--what is the point of that? The only way that could be done IMO would be to launch from a country that is not a state party to the OST, like Costa Rica or Oman.

[Warren Platts]

Lawyers would have a field day arguing the area and value of ACME MMCs abandoned site.

That is a good question. The precedent so far is abandoned sites are still owned. E.g., NASA explicitly claims ownership of the old Apollo sites, and says that the sites are not really abandoned: e.g., laser range finders are still being used, and the equipment represent ongoing experiments in space weathering.

Thus, the ability to claim an important crater wouldn't take much in principle: land a prospecting rover in the middle of Whipple that can last a week or so: have it leave tracks in a criss-crossing pattern no further apart than 1 km (since exhaust plumes can throw up debris for distances up to 2 km).  Drill a series of cores, and leave an ongoing experiment--e.g., a seismograph. That would effectively claim the entire place since no one could land in there without disturbing the previously laid tracks.

[Robert Thompson]

what is the point of that? The only way that could be done IMO would be to launch from a country that is not a state party to the OST, like Costa Rica or Oman.

I find this repellant. But your interpretation comes across as logical. This means that whatever private entity wants to perform an activity that is not automatically subsumed under the State's signatory's prerogative, that entity must forgo the convenience and infrastructure and economies of scale that obtain in developed signatory nations, and basically go to bat, from a commercial dugout, onto a national pitch. It's basically forcing a scenario where only something the size of SpaceX could make a go at *not* being subject to OST, whereas smaller capabilities like Masten *could have done so if their efforts were not subsumed as "national activities". I find it disgusting, feudal, sumptuary, and morally obsolete, and I fully realize I'm nobody. But I won't dispute you/R7's interpretation.

[RanulfC]

Doubtful that the Guano Island Act from 1856 could apply here. There's no bird poop on the Moon. 

Just as an FYI here is the Guano Island Act wiki article:
http://en.wikipedia.org/wiki/Guano_Islands_Act

Point being the "bird-poop" was a resource that the US wanted, NOT necessarily the islands on which the stuff existed. Similarly it is the resources not the "land" that is the stuff of importance in space.

As long as "ACME-Moon-Mining-LLC" is certified (regulated, registered, and under the jurisdiction of) by the US government there would be no "technical" National appropeation of the "land" but of the resources.

Randy

[JasonAW3]

Heck, when I was a Kid and they were first proposing the OST, I knew right then it was a REALLY BAD idea.

[RonM]

Doubtful that the Guano Island Act from 1856 could apply here. There's no bird poop on the Moon. 

Just as an FYI here is the Guano Island Act wiki article:
http://en.wikipedia.org/wiki/Guano_Islands_Act

Point being the "bird-poop" was a resource that the US wanted, NOT necessarily the islands on which the stuff existed. Similarly it is the resources not the "land" that is the stuff of importance in space.

As long as "ACME-Moon-Mining-LLC" is certified (regulated, registered, and under the jurisdiction of) by the US government there would be no "technical" National appropeation of the "land" but of the resources.

Randy

Okay, that sounds good under US law, but what would other countries say about it?

[Warren Platts]

Heck, when I was a Kid and they were first proposing the OST, I knew right then it was a REALLY BAD idea.

Can one of the libertarians around here (and I consider myself one of them) please clearly explain why the OST was and is a REALLY BAD idea? Seems like a libertarian's wet dream to me. As described in the article, Bigelow will get his "zone of operation". The lunar base would be transferable. Where's the beef?

[Jim Davis]

Can one of the libertarians around here (and I consider myself one of them) please clearly explain why the OST was and is a REALLY BAD idea?

It's an exercise in what psychologists call "cognitive dissonance reduction". There is a strong belief (the moon is a source of vast wealth) of many decades standing colliding with a reality (no government, organization, corporation, or individual has shown any interest in this vast wealth) of equally long standing. How does one square this circle or reduce this dissonance in psychological jargon? A common tactic is to invoke conspiracies or name scapegoats. The OST serves the latter function admirably. "It's not the difficulty of access, the extreme temperatures, the radiological environment, the lack of atmosphere, etc. that's preventing lunar exploitation. Oh, no! It's that EVIL treaty. Once we get rid of that the golden age will commence!"

[R7]

It's basically forcing a scenario where only something the size of SpaceX could make a go at *not* being subject to OST, whereas smaller capabilities like Masten *could have done so if their efforts were not subsumed as "national activities". I find it disgusting, feudal, sumptuary, and morally obsolete, and I fully realize I'm nobody. But I won't dispute you/R7's interpretation.

Like Warren wrote the "national activity" does not necessarily mean the State would enforce even Masten sized company to do particular thing for the State. It's only about which nation supervises activity's conformity to OST and which nation is to blame and facilitate compensation if ACME MMCs probe fails and crashes through somebody's roof.

If it's any consolation probably none American space company, whatever size, could try to bypass OST by moving business to non-OST nation due to ITAR restrictions.

And you aren't nobody. I'm nobody!

[R7]

Just as an FYI here is the Guano Island Act wiki article:
http://en.wikipedia.org/wiki/Guano_Islands_Act

Peculiar spaceflight connection to guano islands is that several could be suitable launch sites. For instance first on wikipedia's list, Baker Island, is smack in the middle of equator. Long airstrip but nothing much else. IIRC Beal Aerospace considered guano mined Sombrero Island. I think another such spaceport was planned somewhere north-west of Australia.