[Note: this is a guest post by Alan Wasser, Chairman of the Space Settlement Institute]
As the Space Settlement Initiative says, the settlement of space would benefit all of humanity by opening a new frontier, energizing our society, providing room and resources for the growth of the human race without despoiling the Earth, and creating a lifeboat for humanity that could survive even a planet-wide catastrophe.
Unfortunately, it seems clear that, as things stand now, space settlement will not happen soon enough for any of us to see it, if it ever happens at all. The US government has now officially decided not to go back to the moon, philanthropists cannot afford it, and there is nothing else on the moon or Mars that could be profitable enough to justify the cost of private enterprise developing safe, reliable and affordable human transport.
Therefore, land claims recognition is now the only way that we are ever going to see a return to the moon, this time to stay. Land claims recognition would allow permanent entrepreneurial settlers on the Moon or Mars, who risked their own money and lives to move there, to claim private ownership (but not national sovereignty) of the land they are actually occupying. It would then allow them to sell parts of it to people back on Earth to recoup the investment that got the settlers to the Moon in the first place.
It would thereby save US taxpayers the cost of developing affordable space transport by allowing private enterprise to assume the burden of settling space. It would make it possible for ordinary people to purchase tickets and visit the Moon as tourists, scientists, or entrepreneurs and it would create vast wealth from what is now utterly worthless.
The land claims recognition concept was studied in detail by space expert Rand Simberg in his excellent report, “Homesteading the Final Frontier; A Practical Proposal for Securing Property Rights in Space,” and a Capitol Hill news conference was held April 5th to announce it.
Unfortunately, much of that news conference was taken over by Jim Dunstan, an opponent of the concept. Mr. Dunstan is a distinguished, well-spoken space lawyer, and no disrespect is meant to him personally. But his assertion that the recognition of private ownership of occupied Lunar land would violate the Outer Space Treaty contains an obvious logical flaw. In fact, it was refuted years ago in the most prestigious journal of aerospace law and the latest law school text book on international law. Mr. Dunstan said:
.. since launching states are required to ensure that their nationals conduct activities in conformity with the provisions of the OST, and the OST denies states the ability to appropriate celestial bodies through use and occupation, or by any other means, there is no way that the United States could directly recognize land claims in outer space ..”
That argument is based on an unjustified and illogical leap. Sure, “launching states” must ensure that their nationals’ activities conform to the provisions of the treaty, and the treaty includes a prohibition on national appropriation of territory or claims of national sovereignty.. So launching states must prevent their citizens from making a claim of “national sovereignty” or “national appropriation” on their behalf.
But supervision by sovereign nations of their nationals pursuant to Article VI, requiring nations to monitor that their nationals not violate any provisions of the Treaty, is inapplicable to private lunar land claims based on natural law’s “use and occupation” — for the simple reason that private ownership (i.e., ownership not based on sovereignty) is not prohibited by any provision of the Treaty.
To put it more bluntly: there is no provision in the treaty specifically barring claims of private ownership, so recognizing a private claim based on use and occupation does conform to all the provisions that are actually in the treaty.
Southern Methodist University’s Law School’s Journal of Air Law and Commerce, (Volume 73, Number 1, Winter 2008) and the 656 page comprehensive law school textbook from Westview Press: “International Law”, Silverburg, ed., (ISBN 978-0-8133-4471-3) disagree with Dunstan’s claim. They say:
…the treaty clearly does not contain any language explicitly saying that states may not authorize their citizens to do anything that they themselves cannot do. The treaty does not say that what is prohibited to states is therefore prohibited to private entities nor that what is prohibited to the regulator is therefore always prohibited to the regulated.
A baseball coach gives “authorization and continuing supervision” to his players. Does the fact that the coach is not allowed to run onto the field to catch a fly ball mean the players he supervises cannot either?
There are plenty of long-standing precedents demonstrating actions that the U.S. itself cannot perform legally, but which it can authorize its citizens to do and can recognize when they have done so, such as adopting a particular religion, numerous trade and commercial activities, getting married, or — claiming land on the Moon on the basis of use and occupation.
…If the framers of the Outer Space Treaty had intended to mean that States may not authorize their citizens to do anything which they themselves cannot do, [such as claiming land] they would have written such language into the Treaty explicitly. However, the framers…deliberately required only undefined “authorization and continuing supervision” and compliance with the Treaty. Declassified U.S. State Department records of the treaty negotiations … show they imposed only that nominal burden on private enterprise in space [because] the Americans, adamantly opposed to the Communist proposal to ban all private enterprise space activity, stood fast until the U.S.S.R.agreed to those substantially meaningless face-saving formulations.
The phrase “carried out in conformity with the provisions set forth in the present Treaty” means just what it says. It requires that non-governmental entities abide by what is in the rest of the Treaty. Other than this phrase, the article does not add any new provisions.
[Since no other part of] the Outer Space Treaty contains any provision that bans private property in space, …then “carried out in conformity with the provisions set forth in the present Treaty” cannot be re-interpreted as a ban on private property either.
You can read much more about why the proposed law would not violate the OST, and the entire footnoted article at the Space Settlement Institute’s web site.
Remember, this was vetted and selected for publication in the most prestigious law journal of aerospace law and then by the law professors on whom Westview Press relies to edit their law school text book on international law. Shouldn’t that trump the personal opinions of some space lawyers?
In addition, on April 14th, University of Tennessee law professor Glenn Reynolds, who I consider to be the leading authority on space law, and who literally co-wrote the book on the subject posted the following on his blog:
I disagree with the thesis that because Article 2 of the Outer Space Treaty requires nations to supervise their nationals, it somehow bans private property. And I think that the later drafting of the failed Moon Treaty — which did explicitly ban private property — was an admission that the Outer Space Treaty didn’t. Furthermore, there’s precedent for the U.S. recognizing property rights in areas where it doesn’t, and can’t, claim sovereignty.
Besides these points, it is also worth noting that the US need not be the “launching state” and need not act unilaterally. Space settlement is such a big undertaking that it will probably be a multinational effort, and the proposed legislation contains several different provisions designed to get as many other countries as possible to join in extending reciprocal recognition.
As Rand Simberg said: “…the law would require that the U.S. court system recognize the claim of, say, a corporation chartered on the Isle of Man with investors from Dubai. To say that such a recognition amounts to a “national appropriation” by the U.S. of the legal real estate established with such a claim is plainly absurd.”
It would be even more absurd to say the US was guilty of “national appropriation” if it were one of ten OST signatory countries to recognize a private property claim by a settlement company headquartered in Qatar, Monaco, Liechtenstein or Costa Rica, with a launch site on the coast of Suriname, just 100 miles from the Kourou launch pad in French Guiana. None of those countries have signed or ratified the Outer Space Treaty so the “launching state” would not even be a party to the treaty.
No government can own the Moon, so no government can “grant” it to anyone. But once there really are people living on the Moon permanently, THEY can lay claim to private ownership of the land around them.
The fur-trading settlement established by the private for-profit Shelikhov-Golikov Company on Kodiak Island in 1784 made a private claim to the 600,000 square miles that are now Alaska. Russia and then the world recognized that claim, and, in 1867, the U.S. government paid the then-huge sum of $7,200,000 for it.
Similarly, the US and the world can recognize the Lunar settlement’s claim (at zero cost to the US government) and allow the settlers to sell parts of it to people back on Earth to recoup the investment that enabled the settlers to get there.
Significantly, it is proposed that private Lunar land claims be limited to exactly that size, 600,000 square miles, based precisely on that precedent.
Oddly enough, in another context, Jim described exactly what would happen if the US did recognize a private settlement’s claim to private land ownership. He said:
“When the United States brought back 800 pounds of lunar rocks during the Apollo missions, and declared them to be ‘national assets,’ there was a cry from the international space law community that the samples should be turned over to the United Nations and distributed amongst all the nations of the world. Again, the United States did not go it alone, but in what I believe to be one of the shrewdest moves in the history of international relations, turned to its enemy, the Soviet Union, and exchanged Apollo samples for Soviet Luna samples. This exchange, and subsequent resales by the Russians, established customary international law that objects removed from their natural state, become the property of the remover. But in other ways, the United States has failed miserably in supporting private enterprise in space…”
That is exactly the sort of thing the US and cooperating nations should do in this case to establish customary law allowing recognition of private land claims, despite the similar cry from parts of the same “intentional space law community” – in this case, including Jim himself.
It is time the US actually did support private enterprise in space..
Mr. Dunstan also incorrectly claimed that this legislation might worsen our position vis-a-vis China:
“…if the United States were to pass such legislation, what would stop the Chinese from adopting domestic legislation that took it steps further, such that the first time a Chinese probe lands on the Moon, the Moon could be claimed by the “Great Wall Company” or some other entity solely owned by People’s Liberation Army?”
The short answer is: China’s state space program, because it is a state program not a for-profit effort, has no need of this law, and, in fact, it would only hinder China.
Land Claims Recognition legislation can only help true free enterprise efforts.
Because a majority of US voters clearly have other priorities than space spending, the US has officially abandoned its manned lunar program, and even robot probes and commercial crew are being steadily cut. Therefore, the only way America is going back to the Moon is through the efforts of for-profit private enterprise and NASA Administrator Bolden just confirmed that in a speech.
But for the Chinese and Indian governments this is still a national prestige issue, not a way to make money.
China’s state space program has made it clear that, when it can put a base on the Moon, it will. Some, including visionary space entrepreneur Robert Bigelow. even predict that, when it gets there, China plans to withdraw from the OST and claim national sovereignty over the whole Moon! The Space Settlement Institute’s proposed Lunar Land Claims Recognition law, won’t make the tiniest bit of difference to that!
The only difference this law would make is whether Western private enterprise, which does care about making money, is competing in the race to the Moon or sitting back and leaving the field to the Chinese government.
So, if the Lunar Land Claims Recognition law isn’t passed relatively soon, the Chinese probably will get there first. Once they have a base and a monopoly on lunar transport, they’ll claim whatever they please — up to and including the whole Moon – and they may, or may not, let us visit.
In that case, having this law on our books might possibly save us from being completely shut out from prime resources and locations on the Moon by getting the Chinese to play by its rules. Those include: no more than one claim of 4% of the Moon, and being required to allow Americans on their ships and Lunar base.
The only way this law does them, or anyone else, any good is it lets them sell some of their land to Americans. But that also means it gets them to sell lunar land to Americans, and let Americans go and move in.
Even if the Lunar settlement is Chinese, I suspect that Americans would still be very eager to be able to buy Lunar land, build a hotel and send tourists.
Finally, Jim Dunstan says “So how do we get to the point where we have recognizable property rights in space? I would submit that we’re getting there. And we’re getting there slowly and surely…”
But the point isn’t to just get to some nominal, legally satisfying “property rights in space” for their own sake and for lawyers to argue over.
The point is to use property rights to encourage private for-profit entrepreneurs to invest multiple billions of dollars of their own money into developing affordable, safe, reliable transport and establishing a space settlement.
His kind of “property rights” won’t make that happen. Only the kind of property rights we’re talking about – land claims recognition – would achieve that goal!
Why would any space activist gleefully reach so far for a legal technicality to prevent that from happening?
[Alan Wasser is the Chairman of the Space Settlement Institute]