Bigelow: Moon Property rights would help create a lunar industry

[Bill White]

A short drive-by after a long absence.

IMHO, the Bigelow article at the beginning of this thread illustrates a basic dilemma regarding making actual claims for space property rights.

Should Bigelow (or any other wannabe space property rights player):

A) Seek permission in advance, or

B) Beg forgiveness after a base is deployed?

Investing many tens of billions of dollars on a "beg forgiveness" throw of the dice is extremely unlikely, however, there does not appear to be any authority on Earth with the clear ability to "give permission"

I predict the ultimate solution (if there ever is one) will be political and geopolitical, not legal.

In other words, someone will arrange sufficient global political support for a particular lunar mining operation and those opposed will lack the power to object, successfully. Wrapping this effort in a state of the art public relations campaign strikes me as a useful adjunct to this effort - but your mileage may vary.

In essence, someone (a corporation or a nation state or some hybrid entity) will build a lunar mining facility and with a well crafted PR campaign will say:

"Look what we did.  Anyone got a problem?"

And the answer will be "crickets"

===

Of course, wrapping this effort in persuasive legal sounding language will be an essential part of the PR campaign.

It just won't be truly "legal" as there are no courts of competent authority to adjudicate the claims - except the court of public opinion and terrestrial geopolitical reality.

===

In direct response to the thread title - "Moon property rights would help create lunar industry" - I agree 100%

Except, from where - or whom - would those moon property rights come from?

[A_M_Swallow]

{snip}
In direct response to the thread title - "Moon property rights would help create lunar industry" - I agree 100%

Except, from where - or whom - would those moon property rights come from?

An old legal trick is to change the name to get something similar to what you wanted.

The Outer Space Treaty claimed "... the exploration and use of outer space should be carried on for the benefit of all peoples" i.e. the United Nations.  Power was delegated to "State Parties" such as the United States (Federal) Government by Article VI.  "... 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."

Bigelow needs to get a 10-20 year licence from the US Federal Government to build a Moon Base, mines, roads and factories.  Congress needs to pass the appropriate law.

[Mader Levap]

Bigelow needs to get a 10-20 year licence from the US Federal Government to build a Moon Base, mines, roads and factories.  Congress needs to pass the appropriate law.

It would work only if other countries (all major space powers is enough) recognize this license.

[Eer]

My question is...who will enforce prohibited or unlicensed behavior? It seems like the first few rounds of colonization and exploitation will be defended by those who hold the territory, and until there is some authority on site to enforce injunctions, protests from 256000 or 600000000 miles away will just seem quaint. Of course, Earthboumd representatives will feel pressure, but that is the cost of running an off planet colony.

[A_M_Swallow]

Bigelow needs to get a 10-20 year licence from the US Federal Government to build a Moon Base, mines, roads and factories.  Congress needs to pass the appropriate law.

It would work only if other countries (all major space powers is enough) recognize this license.

There is a big legal hole here.  All such licenses will have to be registered with the UN in-accordance with Article XI.  If other countries do not recognise our licenses then we will will have to stop recognising their licences - in the USA that may require a court case.

The only inter-country penalties in the treaty is "... may request consultation concerning the activity or experiment."

@ Eer "State parties" are required to ensure their companies behave.

[Overmind]

Bigelow needs to get a 10-20 year licence from the US Federal Government to build a Moon Base, mines, roads and factories.  Congress needs to pass the appropriate law.

It would work only if other countries (all major space powers is enough) recognize this license.

There is a big legal hole here.  All such licenses will have to be registered with the UN in-accordance with Article XI.  If other countries do not recognise our licenses then we will will have to stop recognising their licences - in the USA that may require a court case.

The only inter-country penalties in the treaty is "... may request consultation concerning the activity or experiment."

@ Eer "State parties" are required to ensure their companies behave.

If Biggelow puts up a post on the Moon, without asking the UN. What can they do? Tell US to ask BAS to behave? Or else we have to tell you to ask them to behave again.

[A_M_Swallow]

Bigelow needs to get a 10-20 year licence from the US Federal Government to build a Moon Base, mines, roads and factories.  Congress needs to pass the appropriate law.

It would work only if other countries (all major space powers is enough) recognize this license.

There is a big legal hole here.  All such licenses will have to be registered with the UN in-accordance with Article XI.  If other countries do not recognise our licenses then we will will have to stop recognising their licences - in the USA that may require a court case.

The only inter-country penalties in the treaty is "... may request consultation concerning the activity or experiment."

@ Eer "State parties" are required to ensure their companies behave.

If Biggelow puts up a post on the Moon, without asking the UN. What can they do? Tell US to ask BAS to behave? Or else we have to tell you to ask them to behave again.

If the Russians did not like it they could always nuke Washington D.C.

It is polite to ask first.

[Mader Levap]

If Biggelow puts up a post on the Moon, without asking the UN. What can they do? Tell US to ask BAS to behave? Or else we have to tell you to ask them to behave again.

Yep, do as you (USA) please. This can end only well.

[KelvinZero]

Yep, do as you (USA) please. This can end only well.

 

On the other hand, if only Mr. Bush had invaded the Moon with whatever that other war cost. I don't see any big risk of international condemnation of that, probably quite the opposite as with Apollo. The only significant risk is domestic disinterest.

I can't get very worked up about this thread but I would be interested in understanding how the current law would handle some test cases. For example, I understand there is a general principle that you don't land so close to another project as to interfere with it.. what about interfering with its view if it were tourist oriented? I suspect these details wont get sorted out until there are multiple entities and they begin to jostle.

[yg1968]

Bigelow needs to get a 10-20 year licence from the US Federal Government to build a Moon Base, mines, roads and factories.  Congress needs to pass the appropriate law.

It would work only if other countries (all major space powers is enough) recognize this license.

There is a big legal hole here.  All such licenses will have to be registered with the UN in-accordance with Article XI.  If other countries do not recognise our licenses then we will will have to stop recognising their licences - in the USA that may require a court case.

The only inter-country penalties in the treaty is "... may request consultation concerning the activity or experiment."

@ Eer "State parties" are required to ensure their companies behave.

If Biggelow puts up a post on the Moon, without asking the UN. What can they do? Tell US to ask BAS to behave? Or else we have to tell you to ask them to behave again.

I don't know for sure but I suspect that Bigelow would own his module but not the land underneath the module. If the zone of operations concept is implemented, no one from the United States could force him to remove it.

[Overmind]

Everything in this thread is what I would call speculation. We can never know what the real policy will be untill outposts get to be built. The OST is doomed to be toss out the airlock very early.
Let say Elon builds his Musktown on Mars and Bigelow his Lunar casino and resort. That is to happen sooner than later. There will also be security personell there. Then you can be damned that there are to be an outroar targeting American "space imperialism".

[R7]

Everything in this thread is what I would call speculation. We can never know what the real policy will be untill outposts get to be built. The OST is doomed to be toss out the airlock very early.

Your speculation is not based on actually reading the OST, is it? You wouldn't ask question like below if you had.

If Biggelow puts up a post on the Moon, without asking the UN. What can they do? Tell US to ask BAS to behave? Or else we have to tell you to ask them to behave again.

Bigelow does not need to ask the UN for a permission, Bigelow asks it from US government. USgov does not need to ask the UN for a permission, it makes the call on it's own and then informs other OST parties thru UN and likely the really relevant parties via direct space agency contacts too. The OST doesn't give UN the role of judge/arbiter.

[R7]

If Biggelow puts up a post on the Moon, without asking the UN. What can they do? Tell US to ask BAS to behave? Or else we have to tell you to ask them to behave again.

I don't know for sure but I suspect that Bigelow would own his module but not the land underneath the module. If the zone of operations concept is implemented, no one from the United States could force him to remove it.

OST states that launching and landing things on other celestial bodies does not affect their ownership so in Bigelow's case the matter is left for US laws. One would think those laws give Bigelow strong protection against interference from other private US entities, meaning save for some federal special needs no one can force him to leave.

[Overmind]

Everything in this thread is what I would call speculation. We can never know what the real policy will be untill outposts get to be built. The OST is doomed to be toss out the airlock very early.

Your speculation is not based on actually reading the OST, is it? You wouldn't ask question like below if you had.

If Biggelow puts up a post on the Moon, without asking the UN. What can they do? Tell US to ask BAS to behave? Or else we have to tell you to ask them to behave again.

Bigelow does not need to ask the UN for a permission, Bigelow asks it from US government. USgov does not need to ask the UN for a permission, it makes the call on it's own and then informs other OST parties thru UN and likely the really relevant parties via direct space agency contacts too. The OST doesn't give UN the role of judge/arbiter.

Youre right. I havent. Thank you for the link. I'll study it a slow day
Looking forward to the first legal cases.

[yg1968]

If Biggelow puts up a post on the Moon, without asking the UN. What can they do? Tell US to ask BAS to behave? Or else we have to tell you to ask them to behave again.

I don't know for sure but I suspect that Bigelow would own his module but not the land underneath the module. If the zone of operations concept is implemented, no one from the United States could force him to remove it.

OST states that launching and landing things on other celestial bodies does not affect their ownership so in Bigelow's case the matter is left for US laws. One would think those laws give Bigelow strong protection against interference from other private US entities, meaning save for some federal special needs no one can force him to leave.

I think that you are right but that is what Bigelow is asking as part of the payload review process. He wants to make sure that a zone of non-interference does exist and that this zone will be implemented by AST.

[A_M_Swallow]

Mining international land.  As well as the Moon and asteroids there is the deep seas.  UN members are likely to try applying the same rules to both.  The first deep sea mining permits have been issued.
http://www.bbc.co.uk/news/science-environment-28442640

[RanulfC]

Mining international land.  As well as the Moon and asteroids there is the deep seas.  UN members are likely to try applying the same rules to both.  The first deep sea mining permits have been issued.
http://www.bbc.co.uk/news/science-environment-28442640

Deep sea mining is exactly the opposite of what's covered in the OST. Until and unless a LOT more nations ratify the 1979 Moon treaty (which is based on the 1979 Treaty of the Seas which is what is causing the issues with the permits for deep sea mining) the the 1968 OST has no basis or implication that Outer Space is a "common heritage" of all mankind as in the 1979 treaty. UN can't apply a non-ratified treaty to a non-signatory nation.

Which I will point out again is going to be interesting should someone like Virgin Galactic have any plans to operate out of a SIGNATORY nation (let alone one that has ratified the 1979 mess) which will be required by-law to set aside any "profits" made by them to be distributed by the UN office to all UN (signatory) nations

Randy

[A_M_Swallow]

Mining international land.  As well as the Moon and asteroids there is the deep seas.  UN members are likely to try applying the same rules to both.  The first deep sea mining permits have been issued.
http://www.bbc.co.uk/news/science-environment-28442640

Deep sea mining is exactly the opposite of what's covered in the OST. Until and unless a LOT more nations ratify the 1979 Moon treaty (which is based on the 1979 Treaty of the Seas which is what is causing the issues with the permits for deep sea mining) the the 1968 OST has no basis or implication that Outer Space is a "common heritage" of all mankind as in the 1979 treaty. UN can't apply a non-ratified treaty to a non-signatory nation.

Which I will point out again is going to be interesting should someone like Virgin Galactic have any plans to operate out of a SIGNATORY nation (let alone one that has ratified the 1979 mess) which will be required by-law to set aside any "profits" made by them to be distributed by the UN office to all UN (signatory) nations

Randy

The easiest way around that is to create a new company say Virgin Space Mining.

[RanulfC]

The easiest way around that is to create a new company say Virgin Space Mining.

Not seeing how that could be "easier" in any way Its not the company, but the "sponsoring" nation-state that is the key here. USG as a non-signatory/ratifying nation-state would mean any space mining done by its citizens is their (the citizens) to keep. A signatory/ratifying nation-state government would be obligated to take it all and give it to the UN for distribution under the regulations of the treaty.("Some" would be given back to the original ones who mined it, but it would be pretty much only enough to cover the costs and ONLY after the rest was distributed equally to all signatory nations. Given the way the treaty sets up the distribution process its highly doubtful that ANYTHING would end up in the hands of those who did the mining in this case)

My point is/was according to the treaty as Virgin Galactic is pursuing "space" tourism, if they operate out of Australia all monies "made" go to the government, then the UN commission and only after all that is done and finished is any "left-over" sent back to the Australian government to give back to VG. The treaty is explicitly set up to ensure that NO-ONE makes a "profit" from "space activities" unless all Mankind does no matter the how much if any they actually "contribute" to the process.

Specifically any "space" activity "sponsored" (per the same criteria that is in both the OST and the Moon treaty) by any of the following governments:
(Australia, Austria, Belgium, Chile, Kazakhstan, Kuwait, Lebanon, Mexico, Morocco, Netherlands, Pakistan, Peru, Philippines, Saudi Arabia, Turkey, and Uruguay)
That generates "profits" has to be FIRST and FOREMOST turned over to the UN for distribution (in equal measure to all signatory/ratifying states) BEFORE any money is "allowed" to a private/commercial entity.

There's a REASON no "space faring" current, planned, or really potential nation has signed/ratified that piece of junk. I suspect its the main reason no one ever proposed or took seriously the Australian spaceport ideas.

Baikonur(http://en.wikipedia.org/wiki/Baikonur_Cosmodrome) gets around this issue (Kazakhstan being a signatory/ratifier of the treaty and all) because its "owned/operated/sponsored" by the Russian not Kazakhstan government. (Russia NOT being signatory/ratifier of the treaty. Which in a way is really funny because the Soviet government where the ones that pushed for the treaty and actually wrote most of it and even THEY didn't ratify it )

Hands down, though it doesn't ADDRESS property rights the OST is the far better than the 1979 treaty which in fact does. ("You" can't, where as in the prior treaty just governments "can't" even though there is no legal or otherwise method in place for "property ownership" without prior nation-state/government ownership. Which is why Bigelow and the folks like him who keep harping on "space property rights" opening up space for commercialization fail to understand the basic process and keep shooting themselves in the foot to spit "the government" they in fact require to make anything work in the first place )

Bit of research for anyone considering "space" property rights and negotiating a new OST treaty; Look up and read the OST, the 1979 Moon treaty in full, AND the 1970/1982 Treaty of the Seas before you even get started.

IF anyone proposing trying to get a treaty that allowed "individual property rights" in Space did so they would be fully aware of the phrase and meaning of "Common Heritage of all Mankind" and why that's going to pretty much KILL any "treaty" negotiations. (http://en.wikipedia.org/wiki/Common_heritage_of_mankind) Don't like the OST? Tough because it can and almost was much, much worse... Try a different way...
(Oh and Congress can't "magically" make a law that will do the trick no matter how hard they try because for ONE thing they can't legally "regulate" such a thing as they don't and can't "own" space so it can not be subject to "sovereign" laws of that type. We're agreed to and prohibited from trying to end run the OST that way )

Randy

[Vultur]

IMO the US should withdraw from the OST and allow any celestial body landed on by US interests (NASA or commercial) to be claimed as US territory (or probably something like a 100km radius around the landing for large bodies like Moon/Mars).