A Rebuttal To Jim Dunstan On Space Property Rights

[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]

127 thoughts on “A Rebuttal To Jim Dunstan On Space Property Rights

  1. Thomas Matula

    Yes, more and more I see dueling space lawyers tying up lunar development for years by a needless debate that attempts to treat the Moon like the American west. Even more so, such a debate by its very existence is likely to create a hostile environment for a commercial lunar venture by raising “false” legal fears in the minds of potential investors.

    Some key legal points to remember.

    1. The legal right of Americans to own private physical property on the Moon have existed since 1993 when Richard Garriott, a U.S. citizen, purchased the Lunokhod 2 and the Luna 21 lander from the Russian government. No one has challenged his right to ownership since he bought it.

    2. The same auction established the principle of private ownership of lunar material by selling .02 grams of the material returned by the Luna 16 mission to a private collector. There has been no legal challenge to the sale or ownership since.

    Which mean a sufficient legal precedent already exists if a private mission goes to the moon, recovers lunar material and sells the material for revenue. So the scare stories of the government interfering with such a mission are just that, scare stories as the legal precedents have been established and the issuance of a launch license for such a mission would strongly imply legal consent.

    Which basically means the only legal risks to lunar mining by a U.S. firm would be if someone like Dennis Hope sues them for trespassing or some other lawyer sues them to advance their agenda for law ownership. Both would of course lose, but the lawsuits may tie up the samples that are returned for a while which could be a problem for a cash short start-up. Of course the U.S. firm would also have to steer clear of Moon Treaty states like Australia and Kazakhstan but that would be easy enough to do. (Sorry Trent, no consulting contracts for you…)

  2. Rand Simberg Post author

    the scare stories of the government interfering with such a mission are just that, scare stories

    I’ve never heard any of these “scare stories.” Are you just making up straw men again?

    1. Thomas Matula

      Rand,

      You haven’t been involved in seeking funding for any recent lunar ventures have you… That is what investors are reading into NASA legal pursuit of its moon rocks. As I point out, its not that they are moon rocks, but that they are government property, just like government owned cars, etc.

      You know, if space advocates really wanted to move things forward for commercial lunar ventures instead of pushing land schemes they would push for Congress to sell the Moon rocks that were involved in that theft a few years ago. They are basically useless to science because of the handling they received and the 30-40 million dollars likely raised from auctioning pieces off could fund a lot of lunar research. Yes, that would have to be specific in Congressional Act it would take. The idea is yours if you wish to do something productive for lunar development.

        1. Titus

          I have a guy working for me that would leave in a heartbeat if he could go mining asteroids.

          1. Jim Davis

            I have a guy working for me that would leave in a heartbeat if he could go mining asteroids.

            Don’t fall for it; he’s just working you over for a raise. It’s the oldest dodge in the book – “I got this great paying job offer but I really like working here. But I understand that you can’t pay anymore in these tough times…”

          2. Titus

            Heh. Naw, he’s the second best tech I have, but I’d tell him to go in a heartbeat — just send me the pictures…

  3. JJS

    If there were to be discovered another continent. A continent full of natural resources and absent any human life would these same rule apply? And if I were to go to this continent with provisions and people willing to settle the new contenent, exactly who would be responsible for removing me if there groups protested my presence? I think i would be inclined to defend myself and my newly claimed property.

    1. Thomas Matula

      JSS,

      In the current international legal environment, yes, they probably would. Just look at the LOS and Antarctic Treaty system. Space settlement advocates are actually lucky that neither the U.S. or Russia wanted the UN to entangle them in sovereignty issues and agreed on the wording of Article 2.

    2. Jonathan Card

      Didn’t that basically happen with Antarctica? I understand there are oil and mineral reserves that a lot of people want to get at.

  4. JJS

    But there is a distinction between what a government can do and what an individual or group of individuals may do. I contend that the worst your government could do is disavow you. Possibly strip you of citizenship. But forcibly removing you, or your group would not be lawful, by any government, their treaty specifically states that they have no sovereignty. I believe their power to restrict you ends when you arrive there. So, certain governments my interfere with you ability to go there, but that simply means you move you infrastructure to a more hospitable governments territory.

    1. Thomas Matula

      Interesting theory, but in the real world when a government sends some troops to evict you, you will be evicted… As for the legality, everyone involved will just politely whistle and look the other way.

      1. George Turner

        And how is a government going to send troops to these distant bodies? One of the reasons for current US mining law, for example, is that the miners working gold claims in California vastly outnumbered and outgunned the paltry numbers of soldiers who could be made available to exert national or state control of the gold fields, so government officials aborted any attempt at overthrowing the status quo.

        On the moon, for example, you’d likely have a hundred to a thousand settlers, having arrived in threes and sixes in conventional liquid fueled landers over a period of a decade. Their shelters will be buried under several feet of regolith, impervious to small arms fire (but obviously not missiles). Any government that sent troops would likewise have to send them in conventional landers, and the most a government could conceivable afford and coordinate is probably three simultaneous landings (costing tens of billions of dollars). Given the expense and lead time (We are talking about an Apollo program here), the need for dress rehearsals and tests, settlers will have years of advance notice about the impending assault. The settlers will also get to live-stream the entire sordid affair to everyone back on Earth.

        So imagine a few scenarios that both sides will have studied and their ultimate outcomes.

        Keep in mind that on the moon a .308 Winchester has an ultimate range of about 300 miles and the bullets will hit with 100% of their muzzle energy. Also note that landing sites probably can’t be hidden or concealed from indirect fire, that landers have really thin skins, and that a rifle shooting 1/4 MOA will hit a 20 foot by 20 foot lander at a range of 50 miles in an average of 60 shots. To a lander built anything like an Apollo lander, one hit will probably render it useless.

        And that’s if the settlers, who went to the moon, brought nothing fancier than a rifle (like one in my closet) and married it to a PC controlled mount, and hooked an iPhone camera to an unguided Aerotech hobby rocket (like I have in my closet) to get an accurate visual position fix on any lander within 50 miles, comparing the photos to the detailed satellite maps that will be on every settler’s laptop.

        Anyone trying to plan such an assault would see it for the inevitable fiasco that it would be. The situation becomes even more lopsided if soldiers managed to make it to the door of a settlement airlock. A 1/4 stick of dynamite, some screws, and some duct tape and it’s all over for the assault force in space suits. The settlers don’t even have to set it off, either. They can just refuse to open the airlock and mention the bomb and the soldiers will have to retreat before their own air gives out.

        All a government could pull off is without significant risk of failure is a missile assault to obliterate the settlements, a nightmare so obscene and with such PR consequences that no politician would contemplate it.

        1. Thomas Matula

          George,

          Why bother. A simple blockade would be sufficient, especially since most of these schemes depend on raising money on Earth to pay for building and supply the settlements. Cut off the money and they will die on the vine. It won’t be like the American colonies, space is a very different frontier.

          But you miss the key point I made above, namely that countries like the U.S. will either not grant launch licenses or provide a required clause in the launch license prohibiting claims to real property at the start. So your settlers would not even sail without agreeing to not rock the boat with land claims.

          Remember, this is the key difference between space and the American West. Anyone who could afford to buy, or was able to steal, a horse, a gun and some basic tools and supplies could go west, which meant nearly the entire population. There was no more practical way to control access to the frontier. By contrast even under the most optimistic space settlement options the number of transportation options will be limited, will be expensive and will be very easy to regulate and monitor. Your rebels wishing to claim land won’t make the first cut and those who will go will have far too much to lose on Earth to make trouble. This is why space will not be the type of Libertarian frontier as the American West was, too many choke points. And any land grant scheme based on a single country’s law will be doomed from the start unless other countries, or at very least the handful of space faring countries buy into it. Unless the U.S. makes it clear its willing to go to war over it, which it won’t.

          That is why the far better approach is to let settlements and mines develop under the existing law until they reach a critical mass to be self-sufficient, then let nature take its course instead of pushing schemes like this one.

          1. Tom Perkins

            “So your settlers would not even sail without agreeing to not rock the boat with land claims.”

            And they don’t change their minds later or swear falsely because?

        2. George Turner

          Well there’s the catch-22. Nobody will build settlements and mines unless they have the right to build settlements and mines (which require property rights). Mining can’t take place under existing law as interpretted by Jim Dunstan because the minerals that would be mined don’t have a rightful owner or claimant. Anyone who went to the vast trouble and expense of building a lunar base and its associated terrain would have no inherent ownership of it, and thus no legal control over it (except by asserting that the base is actually a ship or aircraft, which would get challenged). Once such a base is completed, under Dunstan’s reading a UN body could declare it an international resource and put their own hand-picked personnel in charge of it, kicking out the original owners and operators.

          As for a blockade, the country whose people have gone to all the trouble to build a lunar or Martian infrastructure would be dead-set against it. Any politician who sided against his own country’s intrepid pioneers, the role models and heroes of every classroom, would quickly find himself out of job. On the other hand, recognizing private claims would mean the country is not only getting a vast space settlement program for free, but actually gets tax revenue from it. It’s a win-win for the host country, and since the host country will almost certainly be the country in control of the settlers’ launch facilities, a blockade by other parties wouldn’t work.

          You’re assuming the space colonists are rebels, but what are they rebelling against? They don’t have a problem with their country of origin or they wouldn’t be up there. Their host country doesn’t have a problem with them or they wouldn’t be up there. What country would have a vested interest in making sure its citizens aren’t exploring space, staking claims, and building space infrastructure?

          In the simple lunar conflict scenario I posted above, I was showing that once established from any country, the settlers would be almost impossible for another country or group of countries to evict. Even if politicians in their host country agitated for a blockade, no sane politician would want to fight a PR battle against space pioneers whose live feed was being watched by tens of millions of people, from fascinated children to captains of industry. The battle is naturally so lopsided that if the North Koreans had some intrepid colonists on the moon (which isn’t that unlikely, because North Koreans are already adapted to living in a tiny metal box without any food), I’d back them over our own State Department’s babbling band of law school graduates.

          This debate only exists now because there’s no physical person up there, thus the profits, infrastructure, and people who’d be on the other side of the issue are still hypotheticals, leaving the field to the self-important diplomats. One the victims of their misguided policies have actual faces, it’s game over.

          1. Thomas Matula

            George,

            You are confusing Real Property Rights with ownership of Physical Property. The settlement structures and mining infrastructure will be physical property owned by the corporations building them, and governed by the laws of the governments they are incorporated in. The UN has no legal ground to take over either, their respective nations will be accountable for their actions. And although the settlements won’t own the land under them no one else will either while under Article IX no interference would be allowed with their operations. And as for the minerals mined, the right of private ownership of material recovered from the Moon has already been established by the sale of the Russian samples. They will own what they mine, pure and simple. There is no legal vacuum. And no need for them to claim sovereignty and issue themselves land deeds. Again, you are trying to treat the Moon like the American West. It is not.

            And should the settlement attempt, which they wouldn’t since the current law allows them to control the land they need without the burden of ownership, to claim the Moon or large sections of it as Real Property there home countries will simply revoked their licenses for launch and take appropriate action against the corporations which will be headquartered on Earth. They won’t need to go to the Moon or Mars since the control centers for those settlements will be on Earth.

            Once again, you must realize the Moon and Mars are not going to be like Little House of the Prairie when a homesteader with a wagon will build his habitat. It will be basically a company town, with the faculties owned by a corporation and space simply leased to tenants. There will not the governance or ownership issues you would have with individual settlers because they wouldn’t survive in space.

          2. George Turner

            Thomas, without claim to the land or claim to the minerals, some sort of lease, the miners have no legal right to mine it, or to prevent someone else from showing up and mining the same spot after the first group has gone to all the trouble and expense of removing the overburden and building the infrastructure. US rules of land ownership in mining claims are very simple and intuitive because they were developed spontaneously by miners. Claims can be as small as one square foot (and have been), something no government would ever have dreamed of. Without such clear rules, every miner will have to be supported by a hundred lawyers in New York.

            Let’s assume that all the miners are all hailing from one country. About a hundred other UN members would have a vested interest in halting mining activities because they’d view the host country’s citizens as getting ahead of their own. All those other countries can cite the existing OST and have their lawyers argue that it prohibits such activities, after which a vast panel of international judges will file an injunction and put a legal halt to the endeavor. The venture collapses and the investors lose all their money. To head that off, the company is going to have to bribe, bribe, and bribe some more, kowtowing to all sorts of international alphabet organizations and hiring all sorts of nephews and neices of foreign bureaucrats. In short, the system without clear land rights is instantly corrupted, just as it already is in every country that doesn’t have clear property laws.

            That is how land rights are granted throughout most of the world. The land is owned by whoever pays the biggest bribes, and any new use of the land or new operations requires further bribes to a vast array of ministries, along with organizations that sprout up solely for the purpose of being bought off. One interesting way around the bribes is for potential property owners to organize into an armed mob and simply occupy the desired real estate until the government gets tired of trying to evict them. Then they get partial recognition that over several decades can turn into actual ownership.

            In Peru the government found that it’s own system of property ownership was so badly screwed up that the national government had to send out government employees to illegally squat on a piece of land so they could build a new government building on it. That’s the type of chaos that ensues without simple things like a functioning system of deeds.

            As Hernando de Soto has argued at length, the US is rich and prosperous because our system of property ownership is simple, intuitive, and efficient, while most of the rest of the world is poor and dysfunctional because they don’t easily recognize property (land) rights. In those countries it can take 20 years of concerted effort to get legal title to a house a family has lived in for centuries, whereas they can fly to Miama and get legal title to a house and land the morning they get off the plane.

            The system of just “using” the land, with nebulous rights and many levels of conditional ownership, the conditions set by numerous different government bodies, has never worked well anywhere, at any time. The system we use works very well everywhere it is tried. It’s so intuitive that you yourself don’t even think about it. It’s so intuitive that we never realized we needed to explain its critical importance to third world countries.

            Without a deed you don’t own a house, you just dwell there. You can’t sell the house because it’s not really yours, so selling is done with winks and nods and only with the permission of all the neighbors, any one of which would happily throw the new stranger out and move their cousin in. You can’t use the house as collateral because the bank can’t seize it, since they can’t prove it’s owned by the same person that owes them money. To Americans this sounds like a crazy and improbable situation. In most of the world it is normal. If we develop the moon without property rights it will be normal there, too.

            For example, you invest $50 billion to build a mining base, with UN approval. As it’s completed you hit cash flow problems and decide you’d be better off selling the base to outside investors. But you don’t really own the land the base is sitting on or intend to mine. That is still nebulous, non-owned, internationally managed land area.

            The UN approved your base’s construction. They didn’t say you could just turn around and sell it to someone they haven’t approved. They didn’t say that someone else, completely unknown to them, could operate it. They’ll express concerns. Shortly thereafter they’ll start making suggestions on who should be granted management rights. Their suggestions will not surprisingly be dominated by people and organizations with very close financial ties to high UN officials.

            At this point you are totally screwed. They’ll never approve purchase by an entitity that isn’t going to play ball with them, and potential buyers are going to realize that they’re not really buying something that can’t be taken away at a whim. The legitimate offers will dry up and the UN deputy secretary’s son will have a cushy no-show job with the company granted operational rights by the UN, with a nominal amount of cash paid to you to keep from raising too many eyebrows. After that, of course, the new company will lease the launchers and rape the intellectual property and machine tooling from the developers, just like opening a new high-tech joint venture in China.

            American businessmen have vast experience in international ventures, and they know how the game is played. Investors know it too. Going into court on a multi-billion dollar dispute over international law while basing the entire property claim only on the precedent that a guy named Joe Bob once sold Ivan 0.02 grams of moon dust without getting sued, well, that’s the height of folly.

    2. George Turner

      You make a good point. By the very terms of the OST, no government has jurisdiction over the moon or other planets because they’ve willingly renounced any current or future sovereignty there. Any settlers would therefore become the defacto government, and it is there decisions on property that would apply. Earth based countries may or may not recognize the settlers sovereignty, but unless they can take direct action the settlers need not care. For example, the territorial claims of the United States were not recognized by the Ottoman Empire until visited by the frigate USS Constitution, having not even known that a country called The United States even existed.

      1. Thomas Matula

        The U.S. wasn’t making territorial claims, they were demanding that the U.S. citizens that had made slaves by the Barbary Pirates be released. And they knew the U.S. existed as it had been paying them to leave U.S. ships alone for years before they USS Constitution was built.

      2. George Turner

        We were paying money to the Barbary states, but I’m not sure they bothered to notify Istanbul, both because the Ottoman empire’s influence in that area had waned, and it wouldn’t be in the financial interest of the various pashas to tell the empire about any new sources of revenue they’d found. With the empire ignorant, they get to keep all the money. Regardless, I’m fairly certain that the Ottoman empire had no idea that the US wasn’t located in Europe, one of the endless list of tiny European countries that come and go.

        And my point was that we didn’t care whether the Ottoman Empire recognized US territorial claims over places like Ohio or Indiana. Their recognition would be totally irrelevant to us.

        1. Thomas Matula

          George,

          [[[Their recognition would be totally irrelevant to us.]]]

          That is because the Ottoman Empire had no interest in North America since the land had already been craved out between the European powers. France and Russian did matter and they recognized the land claims of the U.S. as did England. That was a part of the Paris Treaty of 1783 that ended the Revolutionary War.

          1. George Turner

            It’s also literally because they couldn’t find American on a map, establishing my point. The only countries whose recognition of land claims mattered were other players in the same arena. Recognition by the Ottoman Empire, the Austro-Hungarian Empire, Portugal, or Tibet was so irrelevant that we probably didn’t even bother speaking to them, much less seek their permission.

            Recognition of space claims by countries whose entire space programs amount to launching eggs with a slingshot is likewise irrelevant.

          2. Thomas Matula

            George,

            [[[[[[The only countries whose recognition of land claims mattered were other players in the same arena.]]]

            [[[Recognition of space claims by countries whose entire space programs amount to launching eggs with a slingshot is likewise irrelevant.]]]

            That was one of Jim Dunstan key points, the passage of a law like this in the United States would just lead to similar laws, laws just as favorable to their nationals, with the result is you have the same situation that made Africa and the Middle East such a mess.. Instead of the current situation where no one allows land claims you will multiple land claim laws creating legal chaos that will only enrich the lawyers.

  5. ken anthony

    Gentlemen, thank you both, George and Thomas, for making my point. No nation on earth has jurisdiction on unclaimed ET properties. So the way to go is to agree by the terms of a private charter and just go.

    Thomas, the nightmare you describe is a minor glitch that will be gotten around simple by having enough launch facilities in places govt. will not reach. Or sea launch if it comes to that.

    George, I believe you’ve just outlined a great story. I look forward to the book and/or movie.

    Alan, thank you for this post. I am glad to see you have made the point that their is no lawful ability to grant land at this point (not until a sovereign claim is made that would violate the OST.)

    A claim can be reasonable or unreasonable. That is determined by it’s defense (or defensibility.) This defense can be fought both military and legal. Any nation that chooses to fight thousands of colonists that are opening a frontier in an orderly manner will face the consequences of their actions. It’s a two way street.

    How much land claimed has political consequences. The bigger the grab, the riskier it becomes. It’s also not necessary. There’s a natural solution. For the transport company, one colonist delivered (at no cost to the colonist) equals one reasonable claim (I recommend 1000 sq. km. for each person delivered.) This has the advantage than no one company can dominate a region (leading to quasi-national squabbles.) It also leads to a break even cost of $500 per sq. km. if Elon’s prediction is to be believed. The colonists themselves would likely add to their own property from that of the transport company if anything close to this level is achieved.

    I think eventually everyone will come to this conclusion. This next decade things are going to happen. Let’s not give the lawyers too much up front.

    1. ken anthony

      By the way, that $500 per sq. km. is based on what I think to be current cost of about $50m per person. Get it down to $500k per person and break even for 1000 sq. km. claims becomes…

      $5 per sq. km.

      That’s a whole lot of [very profitable] colonizing goin’ on.

      1. George Turner

        I think you might want to be much more flexible about property claims. Property close to any established facilities is initially worth vastly more than remote parcels. Going back to a pioneer analogy, a building lot in downtown San Francisco is surely worth far more than thousands of acres of bare mountainside.

        I’d let the value float with the market, and perhaps keep some of the early claims small and concentrated so people can rely on each other for mutual support, technical specialization, and convenient infrastructure commonality, just like a small town. Then all sorts of schemes will naturally develop, such as noting how radiation shielding mass versus shielded volume goes down linearly with size, making hemispherical “condos” an attractive business venture. If some of the early pioneers specialize in providing hookups (sewer, water, and electric) it makes it much easier for follow-on settlers to get established, as they don’t have to keep starting from scratch.

        1. ken anthony

          I’d let the value float with the market

          I’m not saying anything different. I was talking about what a transportation company would have to do to get its cost covered on break even.

          The whole point is land can cover the transportation costs and land can cover lifetime earnings for the colonists that are risking their lives.

          The only question is the size of the claims which should not be too big or too small. Whatever size is chosen will have consequences.

          Give them claims the size of Alaska and you are begging for national interests to step in and it isn’t necessary. Give them a reasonable size that the market value (as colonists develop living space) covers their costs over time.

          Once you have a community, real estate starts to fade into the economic background, but at the same time can be used as collateral on other projects. That’s why it’s important that all individuals have a reasonable claim of their own.

          1. George Turner

            I’ll note one useful clause in the early US property laws. For a claim to be valid the claimant had to show that he had made significant improvements upon the land (building a house, barn, fences, and other structures). Even sod houses worked to fulfil this requirement.

            The clause has a couple very useful benefits. It not only motivates the settlers to build and work, it ensures that those that don’t build and work don’t tie up vast tracts with idle claims, basically running around saying “that’s mine, and that’s mine, and that’s mine too!” then heading back to New York and waiting for the checks to start coming in.

            What it would prevent in your case is someone traveling to the moon or Mars to get their land claim in, then leaving on the next available ship to try and turn a profit on land they never even bothered to set foot on. In that case they’d have not only tied up resources of a launch and a return flight, but they also may have locked up a fairly important hunk of real-estate, forcing it to sit idle for perhaps decades.

            What the US law stipulated was that anyone who squatted on idle land for a few years and improved it would be recognized as the legal owner in spite of any outstanding claims by other parties. That tosses land that’s been claimed but left idle back into the working economy.

            On the moon or Mars it would mean that our here and gone speculator is going to have his land snatched from his grasp by a more industrious settler. It also means that a settlement won’t face a situation where most of the land is not only still idle, but claimed by parties whose only interest is eventually sticking it to the settlers who show up later. A lot of the Western claims were so much larger than Eastern claims because a Western settler’s cattle needed far more range, so beneficial use both took a whole lot more area and allowed more area to show beneficial use. Of course in the East far ranging cows would’ve ended up in someone else’s barn.

            One of the reasons I’ve suggesting a close look at early US land laws is that they were arrived at through instinct and lots of trial and error, with all sorts of clever little features and bug fixes to complement natural human behavior. For example, the left screams about land speculators. After a few tweaks our system turned that bug into a feature that allowed poor pioneers (who moved West because they couldn’t possibly afford a farm in the East) to become players in land speculation, much like fixing up and flipping houses today.

            The system they settled on as most efficient for meeting their needs was also, by similar circumstance, designed to move vast tracts of unclaimed idle land into the real ecoomy, with legal ownership rights, distribued equitably among both rich and poor, farmer and merchant, miner and rancher, peon and corporation. Copying a proven system is always easier than reinventing the wheel.

          2. ken anthony

            Forgive me George, but I think you are making a public use argument. Stupidity is protected by the settlement charter. Eventually the stupid die.

            This is the camels nose in the tent.

            It would be no different if somebody never went at all and just bought from somebody that did. The only requirement for making a claim is choosing one from the public registry and planting a boot and they are limited to just one individual claim. Everything else leads to the problems we face today.

            The transportation company only gets a claim by bringing somebody there at great expense. Getting back is an entirely different problem.

          3. ken anthony

            Copying a proven system also means you carry over its problems. Let’s start with a new system of law on a single piece of paper. This time it will have no commerce clause. They can add any laws they like at their own peril.

          4. Peterh

            Would that be the conservative commerce clause that prevents member states of the US from imposing tariffs on good from other states, or the leftist commerce clause that lets the federal government do whatever it wants to regulate commerce?

            Basing initial land claims on occupancy and use appears be be pragmatically solid. Of course the standard for declaring an idle but previously invested in claim abandoned should be high.

          5. ken anthony

            If occupancy and use make the legal argument easier then fine, but possession by terms of a charter gives you complete title. You could then immediately subdivide and sell off developed or undeveloped pieces of property. The fact that the individual has risked their lives to physically take possession should be a high enough hurdle. It also takes away any cloud that they’ve ‘occupied’ or ‘used’ enough.

            They should of course have a proper will.

          6. ken anthony

            Absolute and total property rights means there is no state to impose tariffs. Everything purchased is priced by the seller. No taxes at all. A commerce clause becomes totally superfluous.

          7. George Turner

            I’m not so much making a public use argument as arguing that our existing system has useful provisions that reintroduce lands that have disappeared from the economy – back into the economy.

            A common example would be a person who dies and leaves no heirs. His property isn’t just locked away forever. There’s an exhaustive search for heirs, a long period of waiting, and eventually his land is sold at public auction.

            In the case of a claim on idle property, someone else had to make beneficial use of the land for years, with no counter by the legal deed holder, before ownership swapped. In the case of your land grants, that would occur when the original grantee was not making use of the property, lots of other people were showing up (the settlement was proving highly successful), unclaimed or ungranted land had become scarce (you’re starting to run out of room, otherwise a settler wouldn’t be taking the risk of squatting on an existing claim), and for many years the original grantee took no action to correcting the situation and reassert his rights to the property. That sounds like a useful feature, having enough hoops to jump through to prevent abuse on one side (squatting) while preventing abuse on the other side (having expansion stifled by too many unused claims held by a holding company with close ties to UN officials).

            Just about every odd situation that could arise regarding space property has already occured countless times in the US over the centuries, and we have developed procedures and precedents for all of them. Abandoned property, condemned property, disputed claims, conflicting deeds, imminent domain (now abused), easements, right of way, water rights, mineral rights, graves in the back yard, noisy neighbors; it’s all happend before someplace and we came up with solutions based on real-world cases.

            Not only do we have books of procedures and precedents, we have experts in their use and implementation coming out of our ears, from surveyors and real estate agents to property and contract lawyers. Just cut back on some of the abusive practices of the ambulance chasers and overzealous legislators and we should have a very robust, well tested framework to use. We also have 300 million people who are already using the system (no training required).

            In computer terms, our existing property system has a vast installed user base, existing tech support, a help system, complete documentation, and it has been thoroughly tested and proven stable. It may have a few remaining bugs, but they are generally well documented. I’d rather fly with that system than an entirely new OS that’s hasn’t even gone through beta test.

            Of course without recognition of property rights we’d be implementing a system where each application interfaces directly to the hardware without even going through BIOS. It would only have a half-dozen nearly useless aps and you’d have to cold-boot it constantly.

          8. ken anthony

            unclaimed or ungranted land had become scarce

            Not an issue for several hundred years or more. Why not let them start fresh. Let them think things through for a while before taken the chains back on?

          9. ken anthony

            proven stable

            Sometimes you have to shake things up. Stable can also mean non optimal.

            The law isn’t going anywhere. They have plenty of time while growing to figure out what’s best and what isn’t. Of course, they will get it wrong as humans always do. I just think their shouldn’t be a rush to establish every rule. Let them get used to the idea that they really do have absolute ownership and no state entity is going to come along and take it away from them; either entirely or a penny at a time.

          10. ken anthony

            Imagine these first colonist. I’d love to have you as a martian neighbor where we discussed our political future in the garden with a beer protected from the UV and radiation by a clear dome secure that we could sit there by the pool in our shirtsleeves contemplating the universe.

            We’d be the founding fathers and mothers.

        2. ken anthony

          early claims small and concentrated so people can rely on each other for mutual support

          They will rely on mutual support. I have posts on industrial ecology regarding that point. The claims themselves don’t need to be so small for the community to be concentrated. Assume one sq. km. claims. Assume the community wants to start small and concentrated (which would be my assumption.) They pick one persons claim to build a community center and personal habitats on. They just have to swap title to some land (subplots of within each of their claims.)

          Adults with property have all kinds of options.

          Not all land with have the same value. That’s life. The important thing is that everyone gets a chance to choose a claim from what is available (millions of claims potentially) in an orderly manner that all agree on so they have some reasonable asset to use however they like over their lifetime.

    2. Thomas Matula

      Ken,

      Ultimately it will be the settlers that determine if the land will be owned by anyone, or not. But it won’t be until there until the settlement reaches the level of being nearly self-sufficient and it strong enough to declare its independence. And that will take a long while. Meanwhile any charter claiming land will just be ignored and will be thrown out in court. And those attempting to enforce it will find their supply lines to Earth gone. But realistically, by the time the technology and business models for space settlement are closed it will also be seen that land ownership only has value on a world like Earth where land may be used for growing things and is basically meaningless on worlds where the land is merely an anchor for structures and their radiation shields.

      1. George Turner

        Thomas, settlements have never had to be self-sufficient and independent before people asserted property rights. Not asserting property rights is what usually leads to a complete failure to become self-sufficient, as everyone just stands around accusing each other of not working. Nor is any technological settlement ever going to be self-sufficient. Do you think your iPhone was made down the street? Go over your purchases and identify every item that was actually made entirely in your town. Unless you live in New York, Tokyo, or LA, it will be a very, very small list. For most people it would start with their neighbor’s tomatoes, touch on a local brew pub, then pretty much peter out.

        Why would you imagine that settlers, all of whom are potential land owners, would decide not to own the land they work every day? If they own it, they can sell it to whoever they choose for whatever price they set. They can up the price with every improvement, modification, and alteration they make. If they don’t own it they can be told who they must sell it to by some corrupt official in charge of program management and get billed for unauthorized modifications to an existing structure. Gee, I’m not sure, but I think they’d vote for the first option, being free to do whatever they want and making lots of money off it.

        And if property rights only make sense where people can grow crops, why is Phoenix the fastest growing city in America? You can’t grow shit there. Why is Central California, the best farmland in America, becoming a post-apocolyptic depopulated nightmare? Here’s a clue. To Homo Sapiens Economus, Property rights in the middle of a freakin’ barren desert trumps the best farmland on Earth if property rights are there infringed.

        There have been countless attempts to build your propertyless utopia. 100% have resulted in abysmal failure, economic stagnation, poverty, social retardation, and often mass graves. It doesn’t work. It has never worked. It never will work. Systems with widely dispersed property rights work almost unimaginably well across a staggering range of environments and conditions, seamlessly encompassing claims as small as a square foot to hundreds of thousands of square miles, from jungles to deserts, farmlands to cities, forests to plains, crossing racial, gender, and language barriers, surviving wars, plagues, and pestilence.

        I can’t imagine anything more painfully stupid than saddling humanity’s expansion into space with a property system that has a 100% failure rate. Why not just put plastic explosives on the first stage boosters and save everyoe the drawn out inevitability of disaster?

        It’s ironic that someone on the left would seek to replicate the very corporate or governmental control over property rights that was so dysfunctinoal that it birthed modern leftism. You seek to replicate a system where property is controlled not by the people on it, but by a handful of individuals whose sole skill is climbing the ladder, stabbing people in the back, and abusing the lowly serfs, farmers, miners, and factory workers, to strip them of all their claims to be free and independent property owners.

        You want the rich to be able to force people into poverty. You want the corporate elites to have unlimited eviction powers. You want the powerful to be able to freely claim any resource discovered and developed by a struggling prospector. You want the wealthy to dictate who can build where, and who can live where, and who must be sent home to make room for a more productive worker. This is the future you want to build.

        The left always replicates the nightmare they’re trying to escape, because they can’t yet think through consequences and critically analyze past examples. Unfortuantely it’s a skill they cannot learn because as soon as they learn it they’re no longer on the left.

        You posit that surely people wouldn’t want property rights,despite all the evidence. Even Bolshevics regarded America as the graveyard of communists because every person they sent over disappeared, to be found later running a business. Under our property system owning a business was trivially easy, and soon as they found that out, their honestly earned European class rhetoric went out the window. True leftists were rebelling against property system that you desperately want to restore, one where property ownership is granted based on who you know (and he who controls the use of land is exerting ownership, whether you mouth those words or not).

        You conjecture that in the future we’ll abandon property rights and evolve into the new socialist spaceman. Sorry, but we’ve heard that one for over a century. It hasn’t happened. It hasn’t happened anywhere. It didn’t even happen in hard core communist countries. It’s quite safe to assert that it’s never going to happen.

        You can convince people that it wil happen, but then those people suffer unimaginable hardhsip and misery until they get fed up with standing in line at a bakery that does’t have any bread, just because it’s Tuesday and they always stand in line at the empty bakery on Tuesday, otherwise people might get suspicious.

        Failing all that, you’re certain of government intervention to stop the awful practice of property ownership. Not only are you stereotypically whining that government will solve any problem you perceive, you’re assuming that a politician would be wiling to publically starve the future incarnation of Neil Armstrong, Buzz Aldrin, their wives and children and every future lunar explorer for the crime of owning a piece of airless desert, all in the name of enforcing the adolescent fantasies of the world’s most despised and discredited political system.

        Cuba and North Korea would vote with you. Mao and Pol Pot would if they were stil with us. Other than that you’re barking in the wilderness.

          1. ken anthony

            …rich to be able to force people into poverty…

            This paragraph in particular was fantastic. Strong property rights diminish poverty. Yes, I understand the transportation companies need incentives. But we don’t want to be so eager that we lose sight of what’s essential to the future development of a community: wide spread ownership.

            Getting the size of claims right is not an easy call. 1 sq. km. for individual claims seems to have the Goldilocks feel to me. Smaller gives the individual too much financial risk and larger isn’t needed. 1000 per person for a company claim might not provide enough incentive and the temptation is to make it larger. But the value of that land is going to go up as more settlers arrive. 1000:1 ratio is about as high as you can go without risking having all of that power in few hands. It’s assumed they will sell most of that to cover expenses. Giving them more land may not help as it would just cheapen the land.

            Yes, I lose sleep over things like this.

          2. George Turner

            You needn’t lose sleep, because under a system where land can be bought and sold for money (due to property rights), there are self-correcting mechanisms for claim size. :)

            People make offers on land. Their offer is based on what the land is worth to them. If their offer (per acre, square meter, or lot) is a more profitable deal to the land owner than his original use, he’ll likely subdivide and sell. If the claims are too small, someone with lots of money with an idea for a mine or a fractional-G golf course will buy up all the small lots and consolidate.

            Under Thomas Matula’s deedless utopia, this doesn’t happen efficiently, if at all. For example, a person controlling a large area of topography (we have to use funny words for familiar things in his scheme) under Article IX doesn’t really own it, so it’s not really his to sell (except under my Article VIII sand bags). So buyers who want to put in a real-estate development can’t make him an offer, and his best decision is to retain control of the area no matter how inefficiently he’s making use of it. Not surprisingly, in removing property rights for ordinary people, land sits idle, just like vast tracts held by dukes, barons, and princes.

        1. Thomas Matula

          George,

          [[[Not asserting property rights is what usually leads to a complete failure to become self-sufficient, as everyone just stands around accusing each other of not working. ]]]

          Once again you are confusing Real Property Rights with Personal Property. The key is that those working get to own what they produce. That is already allowed under current space law which would apply the personal property laws, including the IP laws of the country the facilities are registered under. Real property laws only make sense when the land itself has value. The lunar law will not be used for agriculture, its the materials extracted that will be used and current law allows material extracted to be privately owned. That is why Earth based Real Property Laws are not especially relevant to the Moon.

          [[[Nor is any technological settlement ever going to be self-sufficient.]]]

          There are different levels of self-sufficiency. You are thinking of absolute self-sufficiency whereas I am talking about functional self-sufficiency, producing enough of your food, all of your water, enough energy and repair components to survive until your supply lanes are re-established after the revolt is over. Also it helps to be producing goods and services that are needed by Earth so they feel the pain as well and have an incentive to work out a deal.

          But again, you don’t need to own the land your privately owned improvements are located on if no one else is allowed to own it or even use it while you are using it.

          1. ken anthony

            it helps to be producing goods and services that are needed by Earth so they feel the pain as well and have an incentive to work out a deal.

            Not likely for generations or even forever. I wouldn’t count on this kind of leverage.

          2. Peterh

            An example already given, if you missed it:
            An outfit moves in and starts developing a mine. Before they can start extracting ore they have to develop roads and remove rock blocking access to the ore. Without real property rights, what is to stop someone else from moving in after the infrastructure is developed? Without real property rights, what options do they have to sell the developed site, recover some of their investment if they run out of money?

          3. George Turner

            Thomas, real property includes all the structures on a piece of land. That would describe a base, shelter, or habitat. By disallowing the ownership of real property you’re limiting people’s possessions to just the food on the table, the clothes on their back, and a couple of laptops. That alone condemns them to a life of poverty. In the US legal system we would classify them as homeless. In historical terms we would classify them as peasants, working land for a feudal lord so they can feed their families under a legal system that makes it nearly impossible for them to become part of the landed class. We are you so desperate to replicate the most abusive, dysfunctional, and economically unfair system in European history?

            It’s well known, through millions of examples, that people tend not to make significant improvements on real property that they don’t own, as they can’t profit from it. It’s also well known that such tennants are quite abusive of the dwellings they occupy. The result of the propertyless system will be slums in space.

            The number of flaws in such a system are legion and will show up from the start. For example, somebody builds base 1, stage 0 and gets it up and running. Seeing it in operation, seven different companies from three different countries undertake detailed planning on their own expansion projects to interface to the stage 0 infrastructure to bootstrap their own projects. They complete countless Autocad drawings, installation schedules, and start bending metal. All seven companies have picked the same spot for their project. Which company gets to build? There’s no deed, no lease, no way to adjucate their conflicting plans.

            The concept of ownership is intimately related to the concept of control. Multiple parties with differing agendas can’t all be in control of the same spot. The possession of a deed, and the uniqueness of a deed (it is a singular object), is a very simple way to match up decisions to be made with decision makers on a one for one basis. Without it there is chaos.

            You might propose a system where there’s one central decision making body that bears the responsibility for all such planning. Let’s call it the Central Committee of the People’s Republic of Luna. We know quite well how that system will work, and we can go ahead and design long pressurized hallways to accommodate the bread lines.

            You seem to think that the system of ownership of real property is tied to farming. That’s medieval thinking. The system is not based on any particulars of soil, growing season, or food production. It’s based entirely on human behavior. That’s why we use it most intensely for beach front property (useless for growing crops), dense urban jungles (useless for growing crops), offshore oil leases (useless for growing crops), industrial parks (useless for growing crops), and houses (mostly useless for growing crops).

            If you abandon it, any settlement you build will end up with the look and feel of Lagos Nigeria or Soweto, South Africa at best, instead of New York or smal-town USA.

          4. Thomas Matula

            George,

            Once again.

            Under space law space objects, which include the facilities you would find in a settlement belong to those who build them. If the corporate goes bankrupt their ownership would revert to their creditors to auction off. Simply put you are not able to abandon space objects like you do land on Earth, which is why Private Physical Property Rights under the current treaty law are actually stronger then on Earth where title to Real Property my revert to the state for non-payment of Real Property Taxes. And in your mine example, the use of those roads without the permission of the builders could be considered in violation in Article IX. I know its hard to shake off the paradigms of Earth but space is a different legal environment and one actually much more favorable to private ownership of physical property as long as folks don’t try to import unsuitable Earth laws.

            [[[All seven companies have picked the same spot for their project. Which company gets to build? There’s no deed, no lease, no way to adjucate their conflicting plans.]]]

            That is easy, the first to break ground. So there is a premium on actually doing something beyond view graphs.

            And no it won’t be slums because of the barrier to entry. When it costs a tens of millions to do something it doesn’t come out looking like a slum. Again, space is not like the America West or a urban area in the emerging world where you didn’t need much money to do something.

            [[[That’s why we use it most intensely for beach front property (useless for growing crops), dense urban jungles (useless for growing crops), offshore oil leases (useless for growing crops), industrial parks (useless for growing crops), and houses (mostly useless for growing crops).]]]

            Its interesting to note that the Real Property Rights involved in those examples results in inefficiencies through individuals hording the land for speculation and preventing it from being productive. Compare to the Moon where the first ones who use a piece of land effectively control it there increasing economic efficiency.

            You know its thinking like yours, that somehow land must be owned or have restrictive controls on it that led to both the LOS Treaty and the Moon Treaty instead of trusting to markets to work in regards to the building and development of the facilities needed for a settlement.

          5. George Turner

            Thomas,

            And in your mine example, the use of those roads without the permission of the builders could be considered in violation in Article IX.

            You need to reread Article IX. It applies to State Parties of the Treaty (not individuals) interfering with the activities of other State Parties to the Treaty. It means the US shouldn’t interfere with the Russians. It says nothing about whether I can take over your roads, because we’re both from the same country. When Buzz Aldrin reached across Neil Armstrong to grab a tube of orange juice, thus interfering with Neil’s planned consumption of a piece of fruit, he didn’t have to go through consultations with the UN and State Department.

            Since you insist that land can’t be owned (and I have no idea how you can conclude that land isn’t real property. It does have mass, dimensions, and all the other requirements) then you can’t own the land outside your shelter. I can decide to mine all that land right up to your door, stranding you on a plateau, perhaps leaving you a rickety access ladder so you can descend into my busy pit and dodge my robot bulldozers on your way to work. There’s nothing you can do about it because again, we’re from the same country, and as far as international law is concerned we both planned it that way.

            [[[All seven companies have picked the same spot for their project. Which company gets to build? There’s no deed, no lease, no way to adjucate their conflicting plans.]]]

            That is easy, the first to break ground. So there is a premium on actually doing something beyond view graphs.

            No, that’s horrible. All seven companies have spent billions of dollars building hardware, but the first guy to break ground was a settler who thought it would be funny to run out with a shovel and stop ALL seven projects so he could break ground on a windmill. It wouldn’t matter that windmills don’t actually work on the moon, and that he doesn’t actually have a windmill. He has a plan for a windmill and by God he dug a hole two feet deep for the mounting pedestal. I’m sure he’d be willing to waive his project for, oh, $10 billion dollars payable to a numbered Swiss bank account. So he doesn’t own the land, has no claim on the land, no deed to the land, only walked across it to get a picture of himself digging a tiny hole, but he still gets to sell the right to build on it for billions.

            Note that just the fact of your “first to break ground” rule just created a legal property system, the very thing you were trying to avoid, and made it a highly lucrative system for speculators. As I said, the reason we have property rights is because of human behavior. Even you, in a desperate attempt to avoid such a system, recreated it in the span of a few minutes.

            Why not just create the system logically, with precedents under existing laws?

            Under your system, the first action is the settler’s joke (to net billions). The second action will be a bunch of bureaucrats ignoring your law because they thought the outcome was absurd. The third action will be a bunch of bureacrats claiming unto themselves the sole decision making authority on who can build what, and where, to avoid such bizarre claims in the future. The fourth action will be companies bribing all the decision makers for permission to build on favorable locations.

            What you’ve engineered is an incredibly corrupt pay-to-play system where all property and usage rights will be determine solely at the whims of elite Republican aerospace contractors with access to hidden slush funds.

            I know its hard to shake off the paradigms of Earth but space is a different legal environment and one actually much more favorable to private ownership of physical property as long as folks don’t try to import unsuitable Earth laws.

            But as I’ve said, land is real, physical property. In fact, that’s where the term “real-estate” comes from. That’s why people say “I own some property out in the country.” They’re not refering to their car, boat, or couch. Personal possessions and moveable objects are not considered real property, land is. Land also physically exists. You can look up at the moon and see it, plain as day.

          6. ken anthony

            What you’ve engineered is an incredibly corrupt pay-to-play system…

            It’s the whole point isn’t it? Thomas isn’t alone in wanting this. Giving individuals their freedom is an abomination to these great thinkers. Or they really are so delusional as to think that denying property rights is the path to freedom. It is not, Thomas. It is not.

            Also you repeat the nonsense that land only has value if you grow crops on it. I corrected you the first time. You keep repeating this lie which is a typical tactic on the left. Ignore the true and repeat the lie until everyone believes the lie and forgets the truth. It’s what makes the elites so stupid. They begin to believe their own lies.

            it won’t be slums because of the barrier to entry

            Here we have the pinnacle of your illogic. Do you see it? Probably not. If not abandoned because of high costs (you’ve completely denied them deed to valuable property that could pay for the investment) then what? It’s captain Asimov again. You can’t imagine the little people would have any involvement.

            Let me say it more plainly. You are arguing that higher costs means profit. That’s absurd. You are arguing that ownership of things are more secure without ownership of the environment they are in. Insane.

          7. Thomas Matula

            George,

            [[[Under your system, the first action is the settler’s joke (to net billions). The second action will be a bunch of bureaucrats ignoring your law because they thought the outcome was absurd. The third action will be a bunch of bureacrats claiming unto themselves the sole decision making authority on who can build what, and where, to avoid such bizarre claims in the future. The fourth action will be companies bribing all the decision makers for permission to build on favorable locations.]]]

            Your examples are getting funnier and funnier.

            First its not my law, it’s the law that currently exists under the OST and if those bureaucrats from one nation try to ignore it they will see push back from other nations that signed the treaty, as well as a legal challenge under their own national laws. Just try developing one the Apollo landings sites, or even one of the Russian Luna sites. You will see the legal firestorm that will stop you.
            [[[No, that’s horrible. All seven companies have spent billions of dollars building hardware, but the first guy to break ground was a settler who thought it would be funny to run out with a shovel and stop ALL seven projects so he could break ground on a windmill.]]]

            No its not, its just is an example of how strong an individual’s rights actually are under the current OST.

            First, if its so important then why doesn’t one of those firms establish occupation via a rover or similar strategy, before the invest the billions in hardware? And also your example is not that much different than some big mining firm planning in secret some big mine and an old prospector claiming the land under the 1872 Mining Law and doing their $100 of annual work to keep it. And no he won’t own it, he merely has a claim on it for hard rock minerals, while someone else has the oil rights and a third party the water rights and a fourth party the grazing rights and someone else is petitioning the BLM for the solar power or wind rights. Welcome to the complex world of Real Property.
            And you know what? The solution is if its worth that much to the big firm than they will buy them all out. Or in your example the astronaut with the windmill. Its not that much of an issue, just another cost. And its no worse than having to buy out the mega land barons that would exist under Rand’s scheme. Or the railroad barons who owned the land grants that went with their railroads.

            And actually in the context of the Moon or Mars its won’t be as complex as it is on Earth with its Real Property Land., On the Moon or Mars either someone has something on the land and is using it or not. There won’t be any titles or rights to check, you just eyeball it. And if there is a structure or as in your case a windmill you buy it, wreck it and now you may do what you want. No permits needed or government inspectors. So why do you want to make it complicated with land ownership? You really need to start thinking like a true Libertarian and not like Rand who is looking to drag the government in.

            And if they won’t sell? Well then you are out of luck. Now on Earth you could just pressure the appropriate government, promising them jobs and associated tax revenue, to use Eminent Domain to take it away from the individual, but in space, since there is no sovereignty, no government and no land deed, there is no way to” take” the land without the permission of that “astronaut” that dug the hole to build the windmill. And no, those armies of government bureaucrats you want to drag won’t be able to help you because without Real Property Law they have NO legal basis to do so without violating the OST. So they will just shake their head and send you away. So actually when you get down to practical matters the lack of Real Property Laws in space would actually result in greater protection of that astronaut’s physical property than if it was on Earth with its Real Property laws since there would be no government with the legal authority to take it as on Earth. Think about it.

            I have to post the second part below as Rand’s system won’t allow it in one post.

          8. Thomas Matula

            George – Part II

            [[[Why not just create the system logically, with precedents under existing laws?]]]

            And it will once settlements are built and mines established, just as the precedents have already been established for privately owned lunar rovers that may be bought and sold and for privately owned lunar material that is bought and sold. And likely you won’t see and land deeds when that happens anymore then you see “land” deeds for orbital slots. Instead a doctrine of first use will develop as with western water rights because its better suited to the environment they find.

            You know one of the hardest things to explain to an easterner is western water rights. They buy a piece of land with a creek flowing through it and actually think the water is theirs. Its not of course, it belongs to some mining firm a hundred miles away who bought it from someone else whose grand daddy watered cattle on it a hundred years ago. And they will sue you for theft if you take a single drop or do anything to divert it from flowing downstream even if it floods your house. Instead if you want water you need to buy a permit from the state water office and spend thousands drilling a well on your land and hoping to find own water. The key point is that laws always develop to fit their environment. Space is a different environment and its silly to import real property laws that only cover 25% of the Earth’s surface to cover an entire world simply because like the easterner you are used to the “world” being that way. Its Earth based thinking of the worst sort.

            The only chaos that would come would be to create land claims without sovereignty.

          9. Thomas Matula

            ken,

            You really don’t get do you? You are so stuck on the Earth based idea that land is the only type of property that exists. In space land is useless. You are not able to grow anything in it. You are able to touch it except through an space suit glove. The only function it serves is as an anchor to your structure and perhaps as a radiation shield. The real value is not in the land, its in your structure and you have complete and total ownership rights to that under the OST. Rights that are only limited by the government your facility is registered under, and you may change registration if they get annoying? Are you able to do that now without moving? And since their is no Real Property and no Sovereign government there is no one to take the surface are used for your facility away from you, either by Eminent Domain or a tax sale. So your practical rights to the surface your settlement is on will be stronger than the land deed to a house in Arizona. Why do you want to weaken that? I know like many here you associate ownership with a piece of paper, but they are stronger forms of ownership and the non-interference clause of the OST allows for such a ‘defacto” ownership of the land your settlement is on.

          10. George Turner

            Gee Thomas, you’re right about property rights being stronger under the OST.

            Section VIII says:

            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.

            That means I can go up with several bags of nice white beach sand, and spread the sand across several square miles. I’ll call the sand “silica nanoparticles” and say that it’s an albedo experiment. At that point the OST forbids all other parties from interfering with my experiment, my property (the sand), and I am granted absolute ownership rights in perpetuity, passing it along to my heirs and their heirs tax free, as it can’t be seized by any OST State without violating article VIII. Nobody can step on my sand except with my permission, nor disturb it. They can’t build on it or mine underneath it. To full legal effect I own the land because I own the sand. Heck, if I drop the sand from orbit I can probably make a claim the size of Texas.

            So isn’t that wonderful? Under article VIII, by spreading around a simple bag of sand (though bull shit would work equally well, depending on how you want to adjust the albedo) real property claims on celestial bodies are protected under international law, and as the US is a signatory to the treaty and ratified it, it is also US law.

            Also, as spelled out in a comment far below, the OST requires member states to aid astronauts in distress, so if someone attempted a blockade or embargo, all member states would be required under the OST to send food and supplies.

            The OST also forbids military maneuvers in space, so of course member states are forbidden from taking any military action to evict the colonists.

            But these are the things that happen when you’ve got a treaty that looks like it was scribbled on the back of a couple of post cards and try to turn it into a full fledged legal and economic system.

            Oh, and this may come as shock, but here in the East we can’t tap into creeks, either, at least where I’m at.

      2. mrmandias

        I don’t understand that economic argument at all. I suspect it doesn’t make any sense.

        Land on earth doesn’t have value primarily because its potential use as agriculture. It has value because of its potential use for mining, or for siting buildings, or residences, or solar panels, or roads, or anything.

        If land on the moon is used for anything, e.g., for putting structures on, then the land itself has value. Agriculture has nothing to do with it.

  6. Andrew W

    How many lawyers can dance on he head of a pin?

    I agree with other commenter’s that the legal technicalities will likely be bypassed by people just going there and setting up shop, governments can call them squatters if it makes them happy, but eviction (by whom?) would be nasty a can of worms and a huge undertaking, and for what? There’s an awful lot of Moon there, enough to meet all likely demand this century.

  7. Thomas Matula

    Andrew,

    They would only be squatters if there are real property laws. Under the current laws they will be there legally and protected by Article IX of the OST from interference. There only enemy will be the lawyers who try to treat the Celestial Bodies like they are Earth. They are not and Earth based Real property law has about as much place as eastern water law would have in the western U.S. Different physical environments require different legal structures instead of trying to shoe horn in an existing one just because you are used to it. Its high time space advocates stopped thinking like Earthlings and started thinking like spacers. For a good illustration of the difference I refer you to Issac Asimov’s book “The Martian Way”.

    1. ken anthony

      It will be the settlers that determine if the land will be owned

      Exactly.

      It won’t be until there until the settlement reaches the level of being nearly self-sufficient and it strong enough to declare its independence.

      It will be when they have their Neal Armstrong moment. Because they’ve already agreed to a binding private settlement charter before leaving earth. The company transporting them along with every passenger will have signed on to the charter.

      That will take a long while.

      Incorrect. Regarding self sufficiency.

      Any charter claiming land will just be ignored and will be thrown out in court.

      A court that has no jurisdiction and will be ignored.

      Those attempting to enforce it will find their supply lines to Earth gone.

      You keep asserting this. You are flat out wrong. I’m sure some will try. But they can launch someplace else to get around it.

      They would only be squatters if there are real property laws.

      The charter is the law.

      1. Thomas Matula

        Ken,

        If there is such a charter it will need to be kept secret or they will not receive the launch licenses to go in the first place. And although they may be on Mars and “out of reach” their assets on Earth will be in reach of the law. And there will be a court with jurisdiction, the one in the country their corporation and facilities are registered under.

        1. ken anthony

          Yes, it is a fact the bastards will remain bastards and discretion, as I’ve already said, might be prudent. I think the colonists should be all in. They sell everything and find a bank that will not knuckle under to pressure. Those still exist for now.

          The transport companies (I expect they will be multiple even if they all use the same equipment) would be the most discrete of all. While a colonist could tell the world they live on their own property on mars, the transport company might not acknowledge any at first.

          They don’t need to worry about launch licences if they launch from a cooperative nation.

          The transport companies have lawyers too. Civilized nations can not just take a companies assets without due process. Elon has already said that if he doesn’t like the terms the govt. can go pound sand and I’m sure he means it. The govt. doesn’t have all the power and they’d be fighting against heroes out in public.

          1. Thomas Matula

            Ken,

            You might look up the case of Andrew Beal and his rocket plans. He took that attitude and found all types of road blocks that eventually forced him to throw the towel in.

          2. Robert Horning

            What broke the commercial space transportation blockade was the Ansari X-Prize, where the “giggle factor” that somebody other than NASA or the USAF could possible get the finances together and launch a rocket into space. More importantly, and relevant to this whole discussion, is that Congress finally provided a set of laws under which companies could receive licenses in order to operate and send stuff into space on their own dime.

            There are legitimate reasons to require licenses for spaceports and launch operators. Uninvolved people can be hurt from such launches, so some way to deal with the consequences of negligence and malpractice in terms of having a rocket land in the middle of a major urban area (like a rocket going from KSC to Miami and blowing up in the downtown district) are addressed.

            Earlier efforts to even get permission to go into space often met with failure simply because nobody wanted to believe it was even possible. You might also want to review the headaches that AT&T went through trying to get the Telstar satellites into orbit, and how in spite of millions of dollars spent (in the 1960′s) on the technology, a government granted monopoly took that “right” away from them to even send up subsequent telecommunications satellites. They were shut out of the game entirely even though they had experienced engineers to get the job done and even money to send the vehicles into space with shareholders willing to take that risk all because the government wouldn’t let them even try. The effort with the Conestoga rocket system met with a similar kind of failure in part because nobody would work with them and the federal government all but sank their business plan by undercutting their launch prices with unrealistic claims for launch prices that the Space Shuttle would do (and NASA never met I should add).

            The reason commercial spaceflight seems like it is somewhere in the 1960′s is in part because the federal government killed commercial spaceflight in the 1960′s and never let it develop… until recently. That there are robust group of companies now like SpaceX, Orbital, Armadillo Aerospace, Masten, XCor, Sierra Nevada, Bigelow, Blue Orgin, and others who are now getting stuff developed is due to the fact that they are permitted to do so. But so far all they are permitted to do is to go to LEO and perhaps a little beyond.

            Dealing with property rights in space really is the next step, and why this issue is of importance at the moment. There will need to be somebody willing to take a bold move to change the status quo, and sadly the history of commercial spaceflight is one that shows the first people to make a move usually get arrows in their back and millions if not billions of dollars thrown down a fiscal black hole. That is the reason nobody wants to move right now in part because they all know that the first people to move will also be squashed like a bug.

            To use a computer industry analogy, there was a legal question as to if you could copy music from your music collection and put that content onto an MP3 player. The technical capability for doing that had existed for many years, but then came the Diamond Rio where they were the first to move in the market. They also became the target of several lawsuits including one by the Recording Industry Association of America (RIAA) that threatened to shut their business down. That they prevailed ultimately is nice, and I suppose they did make a modest amount of money from their products, but the company that ultimately won in terms of making the big bucks wasn’t Diamond Multimedia but rather Apple Computer with the iPods.

            Who is going to make that big bold move with regards to space real estate? Whomever it may be will need to have a legal team like nobody has ever seen before simply to deal with the bureaucratic BS that will come their way, and even having several members of congress “in their pocket” may not be enough to survive. I certainly think that the companies who will make the big bucks in space aren’t organized yet or perhaps they may be existing players who are on the sidelines right now like Rio Tinto who aren’t even players right now in commercial space politics yet might jump into the game once the early pioneers take the arrows.

          3. ken anthony

            some way to deal with the consequences of negligence and malpractice

            That already exists and has nothing to do with licensing. Licensing is just about control. It’s just another excuse to grow government. They don’t mind any revenue it produces either. The idea that adding layers of law and bureaucracy makes anything better would be funny if it weren’t so depressing.

            will need to have a legal team like nobody has ever seen before

            Why? With the hypotheticals given herein they can literally tell them to pound sand.

          4. Thomas Matula

            Robert,

            Actually it was the Space Services flight from Matagorda Island in 1982 that started the ball rolling by forcing the creation of the FAA AST under the Commercial Space Launch Act of 1984. The first licensed flight under the act from WSMR took place in 1989.

            So really the Ansari X-Prize didn’t contribute that much the legal environment for commercial launch since it existed for over a decade before the prize was even proposed. And given the nearly decade long gap between SpaceShipOne last flight into space and the next private commercial human flight into space one has to argue it didn’t contribute anything significant to advancing the technology for human spaceflight either.

    2. George Turner

      Thomas, under article IX all the settlers will be prosecuted, not protected.

      … States Parties to the Treaty shall pursue studies of outer space,.

      That alone rules out 99% of what a colonist will be doing unless you stretch the words beyond all meaning.

      Further, article IX lists the penalty for causing harm to explorers from another party to the treaty (perhaps by blowing them out of the sky, decapitating their bodies, and then eating them) as the potential for a request for consultations. I’m sure people will feel so safe knowing that if they’re slaughtered by marauding Chinese hit squads, their country’s lawyers can request a consultation under article IX.

      Article XI is actually a hoot.

      In order to promote international co-operation in the peaceful exploration and use of outer space, States Parties to the Treaty conducting activities in outer space, including the moon and other celestial bodies, agree to inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities. On receiving the said information, the Secretary-General of the United Nations should be prepared to disseminate it immediately and effectively.

      I’m sure the people who wrote this never imagined that we’d send the Secretary General the video of three settlers and his wildly drunk daughter in a low gravity panties free maneuver, but it will be his duty to post it all over the Internet. He’s obligated under international law. I can’t believe law school graduates wrote this, much less signed it. ^_^

      1. George Turner

        Yikes, totally blew the block quotes on that one, plus a spelling error.

        I blame lax procedures and a culture where posting safety has taken a back seat to posting schedule. An environment where an upper brain official says the comment is ready for posting before the review brain has time to look it over and stamp it for approval. I’d also site the adoption of an early generation hypertext language where the deletion of a simple slash has such profound consequences, and recommend a review board to accept suggestions on a less error-prone language.

        In short, I’m passing the buck. Yes, the tragic comment could’ve been easily avoided if the proper procedures and systems were in place. Yes, my panties-free joke about the Secretary General’s daughter would’ve soared without the confusion resulting from the quote failure. We [the investigative committee] feel that scheduling pressures and inadequate funds are the root cause of the failure, and that if you pay us more and increse staffing levels we promise to produce less.

        Government in a nutshell.

          1. Thomas Matula

            Ken,

            Tort equals very rich lawyers and class action lawsuits :-)

            Maybe you should include a provision in your charter that outlaws receiving compensation for the practice of law and prohibits lawyers from running for office or serving in government. :-)

          2. ken anthony

            Well, that does have some merit, but I remain a capitalist pig.

            I do think they could get rid of preemptive law and stick with responsibility and compensation for property damage (including any personal harm.)

            You don’t need lawyers when you have a community. Adults can handle these things without arguing what the definition of is, is.

      2. Thomas Matula

        George,

        Article IX was used in 1969 during Apollo 11 when the U.S. asked for proof that a Russia Luna mission would not conflict with Apollo 11 and the Russian complied providing details on its orbit and mission, something they had always kept secret. Its just not for application after the fact. And its the basic reason for the Registration Convention whose function is to tell folks where your space objects are so they will know to steer clear.

        Oh, and the likely response to your Chinese hit squad example would be the same as if done on Earth to U.S. nationals in an international area like the high seas.

        [[[to the greatest extent feasible and practicable]]]

        Note the qualifiers, giving away your business model would easily be argued as not being feasible or practical.

  8. ken anthony

    It just occurred to me (yeah, I’m quite slow at times) that Thomas’ argument about how the govt. would stop launches and seize assets is exactly why they should go to mars. To get away from these jackals.

  9. Laura M

    This is a really awesome discussion.

    One minor point on launch licenses: in order to prohibit a launch whose mission is the acquisition of private property, the FAA would need Congress to change the FAA’s governing statute. I do not find anything in Chapter 509 that prohibits the acquisition of property.

    Don’t know about other countries.

    1. Thomas Matula

      Laura M,

      Again be care of your use of words. Private Physical Property is allowed and there are probably more privately owned satellites (comsats) in operation then government owned ones. But then 80% of global space spending is on private commercial space activities so that shouldn’t be surprising.

      But if the mission purpose included making a land claim then it could indeed be disallowed since it involves doing something which may be regarded as being in violation of a treaty the U.S. is part to – an action the U.S. government would be held accountable for. And I know they do take treaty provisions into account as the late Dennis Laurie was informed that if he requested a license for a mission to visit the Apollo sites it would be denied since it would be regarded as interference under Article IX. When he asked about visiting Russian landing sites he was told he needed to get their permission first. Yes, we had a laugh over the Google Lunar X prize on that part of the prize (visiting an Apollo landing site) as it was clear their lawyers had not done their homework when they offered it.

      BTW if Alan Wasser actually does believe the private land claim loophole exists one practical way to prove would be to apply for a launch license to send a rover on a mission to survey land claim boundaries. Then, when the FAA AST denies it on treaty grounds he could sue them over the denial forcing the issue into Federal court. I would take the outcome of that process far more seriously then a speculative article published in a law review.

      1. ken anthony

        That’s a trap Thomas. The law is wrong (regarding interpretation if nothing else, but there is a lot else) and you want to confirm the law. It’s real easy to bat away some bothersome pissant. It’s a lot harder to deny heroes their life and livelihood. Timing is important.

        Common heritage is pure Marxist crap from whole cloth and is not logical on its face. You want to confirm this marxism as the law for the entire human species for all time. Never!

        1. Thomas Matula

          Ken,

          But Alan Wasser claims to have a fool proof argument, one accepted for publication in the top space law journal and being reviewed by the top space legal experts. How could he lose? :-)

          1. mrmandias

            Wasser claims that the US needs to pass a law first, as far as I can tell. That’s the point of his Space Settlement Initiative Act.

      2. George Turner

        Thomas, there are many holes in the OST.

        Under article VIII I can own land on the moon.

        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.

        So I buy a piece of desert in Nevada, so I own the land and the sand that’s on it. I take the sand with me to the moon and spread it on top of the lunar soil. I still own the sand under Article VIII and there’s no way to seperate it from the lunar soil, so I am the permanent owner of the property because no one else is allowed to infringe on my sand. Can you say “get off my lawn!”?

        Article IX is violated in multiple ways every time an American astronaut squares off against a Russian Cosmonaut for a game of chess on the ISS.

        In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation

        Playing chess in zero-G is a use of outer space, yet the astronaut and cosmonaut are pointedly not co-operating, and are indeed desperately trying to checkmate each other.

        a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment.

        Knight to queen’s bishop 3 is an activity, planned by a Russian national, taking place in outer space, with his ground controllers suspecting that it is his next move, and that it will cause harm and interference with the American astronaut’s carefully devised strategy. Under international law the Russian government must “undertake appropriate international consultations” before the cosmonaut makes the move. They don’t, and neither do we, in clear violation of the OST.

        But let us go back to article II, quoted here in its entirety.

        Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

        If they wanted to say “Land ownership is forbidden” they would’ve said “land ownership is forbidden.” Instead they assert that a nation can’t claim ownership and sovereignty. What this means is that celestrial bodies are forever outside the control and jurisdiction of national governments, to prevent countries from claiming moons, planets, and so on.

        Also of interest is that Article IV expressly says “the conduct of military manoeuvres on celestial bodies shall be forbidden.” So neither the UN or any nation can send troops to evict settlers, in an attempt to enforce the OST, when doing so would itself be a violation of the OST. The settlers, thankfully, wouldn’t be conducting military maneuvers because they’re not in the military and would be armed only with civilian weapons to fight off blue-helmeted space pirates.

        Under Article V all state parties to the treaty are obligated to render assistance to any astronauts in the event of distress. A blockade causes distress, so all State Parties would be obligated under the OST to break the blockade and send food.

        1. Thomas Matula

          George,
          [[[So I buy a piece of desert in Nevada, so I own the land and the sand that’s on it. I take the sand with me to the moon and spread it on top of the lunar soil. I still own the sand under Article VIII and there’s no way to seperate it from the lunar soil, so I am the permanent owner of the property because no one else is allowed to infringe on my sand. Can you say “get off my lawn!”?]]]
          Now you are starting to understand. Technically you only own the sand grains from Earth, not the lunar land, but your mixing could constitute use and so you would have ‘effective control of the lunar land through use but not technical ownership. And you may transfer that control by merely selling the Nevada sand to someone else.
          [[[Playing chess in zero-G is a use of outer space, yet the astronaut and cosmonaut are pointedly not co-operating, and are indeed desperately trying to checkmate each other.]]]
          This is why there are the ISS Agreements, to close the gaps in the OST and spell out who owns what and what is allowed and not allowed. And to allow such friendly interaction as well as a Russian commander giving orders to an American in one of the American modules.
          [[[If they wanted to say “Land ownership is forbidden” they would’ve said “land ownership is forbidden.”]]]
          ALL existing land titles trace themselves to claims of national sovereignty and are inferior to those sovereignty claims. In short they didn’t see the need to state what is obvious under existing international law. But they were cautious enough to cover it with their catch all “by any other means” just for folks like you 
          [[[Also of interest is that Article IV expressly says “the conduct of military manoeuvres on celestial bodies shall be forbidden.” So neither the UN or any nation can send troops to evict settlers, in an attempt to enforce the OST, when doing so would itself be a violation of the OST.]]]
          The OST references the UN Charter which allows for military action under Article 51. And since it references the UN Charter it places the UN Charter in a superior position. In short, if the UN Security Council Oks it, or more to the point, doesn’t object to it then its OK to send the troops in to crush the rebels :-)
          Incidentally that is also the same clause which would allow nations to nuke incoming asteroids despite the OST and Nuclear Test Ban Treaties….

          1. George Turner

            Now you are starting to understand. Technically you only own the sand grains from Earth, not the lunar land, but your mixing could constitute use and so you would have ‘effective control of the lunar land through use but not technical ownership. And you may transfer that control by merely selling the Nevada sand to someone else.

            Again, look at the ramifications of it. It gives me complete control over the land in perpetuity (at least until the sun expands into a red giant). I can spread sand across the entire moon and be the absolute, dictatorial owner, answerable to no one (as the OST also forbids parties to the treaty from exerting sovereignty), convert to Islam, start a harem, and deny anyone else landing rights, as they’ll disturb my albedo experiment and crush my property, violating several provisions of the OST.

            ALL existing land titles trace themselves to claims of national sovereignty and are inferior to those sovereignty claims.

            Uh, no. In case you haven’t read the Magna Carta, one of the things it established was that property rights to land, earnings, and inheritance therefrom superceded the rights of the king. Under common law, your sovereign may not trespass upon your property (thus the famous saying that a man’s home is his castle – ending with “the king may not enter”). The critical importance of land ownership as the foundation of common law was elaborated in Blackstone’s Commentaries.

            Until 1677 England didn’t even require an actual title document, transfers were done verbally in a ceremony. It’s pretty hard to exert sovereignty over something that isn’t documented, although an alternate method of transfering ownership required not only documentation but registration as early as 1536. Again, note that people had asserted their legal precedence over the king regarding real estate in 1215 in the Magna Carta, so for many centuries the government could not, on its own, even figure out who owned what. They’d have to ask all the owners.

            The American colonies required registration of deeds as early as 1640, barely more than 25 years after Pocohontas got married, and the colonies only did that to control fraud, which was pretty bad.

            Admittedly, under the common law system, all titles would trace back to a land grant from the king, but that was primarily because the English imagined that the rights to land, granted centuries earlier, had to have come from somewhere, since land doesn’t just appear out of thin air. Back then people imagined that all rights flowed from the king, so they’d naturally assume that property rights did too. Thinking like that is why peasants lived in hovels, eating rats, which is what modern socialists apparently call a state of utopia.

            In the US this need to trace a land title back to the king wasn’t an issue, and became vastly less so after the Revolution. Most of the modern US had never under English sovereignty in the first place. In fact, when a new territory was added we were in many cases less likely to recognize a deed from a foreign sovereign than a gentlemens’ agreements between ordinary settlers (done up in all the proper legal ways). Daniel Boone ran into this problem and Congress had to address it. Being independent and anti-monarchy, our courts looked askance at not only any royal land grants, but in many cases forbade citing a foreign precedent in a US court.

            But to the rub of the matter: Like many on the left, you assume that all rights must flow from the King. In this country all rights come from the people. John Locke persuasively argued that this is in fact the case, but that people stupidly sometimes surrender too many rights to a sovereign. The role of government in property rghts is not in granting, as even villagers established property rights as soon as they learned to plant crops, but in documenting the claims. (Interestingly enough, the Pathagorean theorem traces back to Egypt, where it was used to re-establish legal property boundries after each season’s Nile flood).

            How can a body that you elect have more right to property than you do, indeed “granting” you (with a bow), a right? Under our system of government, they are your servants. You are not their peasant, serf, or slave. Note that government employees are paid a salary. That salary is paid by you. When person A pays person B to do a job, who is the boss and who is the employee? Here in Kentucky, my boss pays me to work for him, and I pay the governor and the President to work for me. That makes me their boss. That’s why we call them public servants, a servant being one who polishes your boots or trims your hedges.

            I can empower them to do important and powerful things, but I cannot empower them to exercise a right that I don’t have because that’s not a right I can grant. The people of the several states granted the federal government the right to own some property that we called the District of Columbia, being all big on Columbus at the time. (Nowdays we’d probably call it the Federal District for the Criminally Narcissistic and Numerically Incompetent). If we are the ones who can grant the federal government the right to own land, how can the federal government be granting us the right to own land? Wouldn’t that be a circle jerk?

            Note to the leftists. I know Marx tried to convince you that you didn’t have any property rights. You do. You really do.

          2. ken anthony

            …your mixing could constitute use and so you would have ‘effective control of the lunar land through use but not technical ownership. And you may transfer that control by merely selling the Nevada sand to someone else.

            Are you serious? So all we need is my charter in one hand and a bag of sand in the other? Did you ever consider why I keep associating the word REASONABLE with my claims?

            You’ve lost all reason. When you become a player of words and rules you’ve totally abandoned all common sense and yet you accuse me of not getting it.

            Amazing.

            George has made it pretty clear the OST has the same intellectual lineage as the communist manifesto; which is to say, beyond juvenile. They both start on a foundation of false assertions and then get worse.

          3. Thomas Matula

            George,

            First, is you did so the science community would probably lynch you and the international community would move to make it illegal, probably creating a worst treaty then the Moon treaty.

            But again, that is the ramifications when there is no Real Property Law or land titles. Your Nile Flood example was one of the reasons Real Property Law was created on Earth. But since you don’t have it on the Moon, use of the land trumps it.

        2. gbaikie

          “So I buy a piece of desert in Nevada, so I own the land and the sand that’s on it. I take the sand with me to the moon and spread it on top of the lunar soil. ”

          It would cheaper to buy some baby powder.
          One make the value more unique by using “used baby power”, residue of stuff used on your baby, friends, and/or movie stars. Therefore in similar manner that increase value something if flown on shuttle, one add sentimental value [or priceless value to talc powder].
          Or Funeral ashes also.

          Because someone could deliberately destroy “your property”, and be liable for replacement costs- and anything making it less replaceable increases damages one could seek, and thereby giving a more secure land claim.

          1. George Turner

            I would only use baby powder for the eyes of the big giant smiley face that will mark my claim. Carbon black for the pupils, borders, and mouth, and then lots and lots of sulfur. People in the Southern hemisphere might find my land claim somewhat disconcerting. People in the Northern Hemisphere will just despise Forest Gump for thinking it up in the first place.

      3. George Turner

        Let me add that my “take some dirt with you” concept is also in accord with prohibited national sovereignty. If I buy a bag of garden soil I own it. If I ship it overseas I still own it, even though it’s no longer a bag of garden soil under US jurisdiction. The dirt is property, but the dirt is under the jurisdiction of whichever, if any, government claims sovereignty over the dirt bag’s physical location. Perhaps this is why Hawaii prohibits the importation of dirt. :P

        1. Thomas Matula

          George,

          I responded above, but as for Hawaii’s ban, its for agriculture reasons, specifically to reduce the risk of importing microorganisms that could harm the state’s agriculture or natural flora and fauna. And that would be the only flaw in your plan, if you are deny you a launch license under the doctrine of planetary protection. That would definitely be the case if you did it for Mars but you might get away with it for the Moon.

          Incidentally, speaking of dirt, did you know when Lady Bird Johnson gave birth to one of LBJ’s daughters he had a boxes of Texas soil flown in to Washington to place under the bed posts of her hospital bed? He wanted to claim his daughter were born on Texas soil :-)

  10. Thomas Matula

    Andrew,

    Simple

    The common definition of Celestial Bodies is objects that are in their “natural” place. In the case of an asteroid that is orbit. Once it is forced out of its orbit by unnatural means (i.e. humans) it is no longer a Celestial Body and so it may be claimed by whoever moved it out of its orbit, subject to the laws of the nation the mission is operating under. And this principle has been established already in the case of collecting meteoroids and returning them to Earth. Note, the law does not distinguish Celestial Bodies by size, so the same rule that applies to a space object 1 mm in diameter also applies to one 100 kilometers. ‘

    In short if they change its orbit enough to prove they did it, they own it :-)

      1. Thomas Matula

        Ken,

        Two problems. First you would have to prove the orbit was changed and second it was your kiss that changed it.

  11. Bartosz Malinowski

    OST does not require the parties to prosecute etc. against sellers of lunar rocks, regardless of the volume, as is eg frequently required by legal instruments issued by the EU bodies towards infringers of such regulations. Neither does OST declare such deals to be invalid. Do I need to be an owner of real property in order to make profit? So, couldn’t US adopt provisions resulting in authomatic acquisition of property right to an extraterrestial object by its de facto possessor after the crossing of 100 km altitude above the US territory?

  12. ken anthony

    In space land is useless.

    This is the foundation of your argument Thomas. You say I don’t get it???

    To refute your argument I only have to give a single example.

    Do you get it? I’m taking bets.

    Collateral.

    1. Thomas Matula

      Ken,
      Sorry for the delay responding but I have busy the last couple of days.
      I will try one more time to illustrate the difference between ownership and control and why the latter is better.

      First case – you have a warranty deed to an acre of law in Pima County Arizona. And to keep it simple you also have the water rights, mineral rights, oil and gas rights and alternative energy rights to it. Now you may own it but do you really control it? If you want to drill a while, build a house or expand it, or run a business you will need to get a permit from Pima County to do so. Pima County also charges you a tax each year for the land and if you don’t pay they will take ownership of it. The State of Arizona and the U.S. government may also take the land if you don’t pay your state and federal taxes. And the County, State and Federal government may ALL use the Constitutional concept of Eminent Domain if they feel the public would be served by putting it to another use then the one you are using it for. Yep, you own that acre of land under Real Property Laws, but those laws don’t give you much control

      Now let’s look at Rand’s plan in case two. The transportation corporation gets a land grant twice the size of Texas around their spaceport so if you want to locate with a few hundred kilometers of it you will have to buy the land from them. Odds are, being a profit maximizing corporation you will have to pay separately for the mineral, water and energy rights to it as well as for the deed. And again, being a good profit maximizing corporation their lawyers will probably include clauses that allow them to take back the land in a form of corporate Eminent Domain if they feel they have a better use of it or you do something they don’t like on it. And since there is no government sovereignty you will have little recourse but to git when they tell you to get. Sound like a great plan doesn’t it. Again, you have a piece of paper that you paid for giving you title, but your control is limited

      Now look at the current state of affairs – Case 3. If you build a facility or mine on an acre of the Moon or Mars you don’t have title to the land, but neither does anyone else since land titles are not allowed. But since you were first you something more valuable, control, since any trespassers would be causing inference by definition. And if you want to expand, drill for water, mine resources you just go ahead. Your only limitation with be the laws of the country of record for Registration of your settlement (which would be legally considered a space object). But if you don’t like your current country of Registration you just change it by “selling” your settlement to another corporation you set up in another country with more favorable laws. And if you want to expand to the next acre of land you just have to eyeball it to see if anyone has made use of it. If not, its yours to expand on to. And if some megacorporation or government wants to get your land for a “better” use? Well they are out of luck. Since there is no land title and no sovereignty there is no legal means for them to do so, other then buying your facilities at YOUR price. Of course they could try a hostile take over, but you would have not only the legal right to resist but the ability to sue them in court on Earth under Article IX. In short, although you don’t have title under the current legal system you have something far more valuable – complete control of the land your facility or mine is on.

      So tell me. Which of the three models is more favorable to lunar development? The Arizona one where you have title by very limited control. Rand’s model where again you have title by limited control or the current one, where you have no title but complete control?

      Again, you need to move beyond placing you faith in a piece of paper that says you own a piece of land but doesn’t give you real control over it. I will take the control any day over a piece of paper that the government or a mega corporation may nullify at any time.

      1. George Turner

        Thomas, as I’ve said before, the reason we required the government to keep a copy of deeds and titles is to prevent fraud. For a long time deeds and titles were just transfered privately.

        Your idea of “who’s using it” belongs to Romper Room or a playground, where attention spans are limited, yet even there it is the cause of most fights. “I was using it!” “Were not!” “Was too!” “Then how’d I get it?” “I just put it down, but I was still using it!” Do you really want adults to try and operate under this system? It’s absurd.

        “Corporate Eminent Domain” is an equally absurd concept that you just made up. The whole concept of Eminent Domain is that the public needs to buy out a private actor. A corporation is one of those private actors, a legal personhood. If we had a concept of Corporate Eminent Domain then we’d have a concept of Private Eminent Domain (or I could just incorporate in about 20 minutes), and then I could seize your house and car just because I felt like it. But then you could seize mine, but I’d seize your toner cartridge and your butter dish while you seized my sock drawer and twine collection. The concept does not exist and will never exist because it leads to absurd outcomes.

        Again, you need to move beyond placing you faith in a piece of paper that says you own a piece of land but doesn’t give you real control over it. I will take the control any day over a piece of paper that the government or a mega corporation may nullify at any time.

        Okay, I’ll play. You give me the piece of paper commonly called the deed to your house, and I’ll let you retain control over it. I promise I will.

        As Hernando De Soto has pointed out, a house is just a dwelling and a car is just a means of transportation. It’s the deed and the car title that make them capital. In the third world the lack of legal deeds and title keeps everyone in poverty. They have defacto control over their dwelling and their car, but cannot use those items as collateral, cannot freely sell them without elaborate precautions (all sales take place on the black market), and cannot use their property in the real banking systems.

        Thomas, hundreds and hundreds of millions of people live under your system now. We see their faces on posters for UNICEF.

        1. ken anthony

          Your idea of “who’s using it” belongs to Romper Room

          I’ve been calling it juvenile thinking, but I think I like your description better.

          Good catch on private eminent domain. I’d go further and state that ‘public rights’ is a fiction that gets us in these problems. Public rights by definition must oppose private rights meaning you’ve just devalued private rights. Devalue them enough and they don’t exist at all. If private rights don’t exist, how is the public protected? It isn’t. It has become a mob ready for a demagogue.

          Sounds like captain Asimov would like that role.

          1. Thomas Matula

            Ken,

            You need to forget that Libratarian Theory and come into the real world of law. ALL land titles in the U.S. will trace back either to a land grant that the U.S. acquired as part of a treaty or a patent issued by the U.S. government. That is why there are restrictions. And you will find the same applies in every other country in the world. Private individuals haven’t created land rights by possession since the days of the Vikings…

          2. mrmandias

            Thomas M.,
            I’m not sure this is totally true. I’d have to check, but I think some titles originated in, e.g., sale from Indian tribes, or on folks just being there already when civilization showed up. Probably just a semantic difference though.

        2. Thomas Matula

          George,

          Go talk to a title company. They will explain that ALL deeds will trace back either to a land grant or a patent. And who gives those? The government that controls the area where the land was located.

          1. Thomas Matula

            George,

            And incidently, that is the problem that De Soto is referring to. The title to the land they are located on belongs to the government or some land baron in good with the government. The problem is not that there is no title, but that the folks living there don’t have title because the title record is unclear. On the Moon and Celestial Bodies this not the case because there are no titles begin with to the land, so control is defacto ownership.

          2. mrmandias

            Theoretically, but in practice most titles can’t be traced that far back, since deeds weren’t always registered in the 19th. Traceably, most titles originate in a deed that somebody issued.

            Adverse possession is one modern form of gaining title through something other than a sovereign grant or patent. Obviously the title doesn’t mean much until its recognized by a court or some other sovereign branch, but legally the title dates back to whenever the conditions for adverse possession were met, not to the time of judicial recognition.

  13. R7 Rocket

    Concerning space battles between the Moon and the Earth, the Earthlings will be shooting their arrows uphill. The Lunar colonists will be shooting their arrows downhill.

  14. richard40

    One problem I see with lunar property rights is what court would have juristiction to adjudicate disputes of those property rights. A US court would require US soverignty, which the treaty prohibits. And a UN court would only be helpful if the UN recognizes and ratifies a law creating those potential property rights.

    In the end, I suspect property rights will only occur if there is some lunar government, composed of lunar residents, to defend and adjudicate those property rights.

    To facilitate that, I would favor the US demanding the UN establish a way to have property rights for lunar settlers, with a provision for lunar residents to establish their own self governing nation once their population reaches a certain level. And if the UN wont, just withdraw from the treaty, establish US based property rights, with an eventual establishment of a new lunar nation, and pledge US military support to defend them until they can defend themselves.

    1. George Turner

      That would be the most logical course. When America was first being colonized, the colonists would try their own cases under the laws they were familiar with. Then immediately started adapted those laws to local conditions, producing a large body of Colonial law which was used for about 150 years, and on which much of the later laws were based.

      All you need for the system to work is one small settlement and someone to act as judge, which is how we handled most cases in the early days of settlement. Tthe courts don’t work from the top down but from the bottom up, so the local judge’s ruling will be final until the settlements grow enough to justify an appeals court. These early judges will hear lots of unusual and original cases, and their rulings will set precedents that will become the basis of lunar or space law, being modified from the laws they’d been accustomed to or developed from scratch, as needed.

      I just hope the judge has lots of common sense, because common sense and tradition will handle the vast bulk of problems that arise, whereas Thomas Matula’s hair-splitting over whether I own lunar soil in addition to the added sand marks the pass to madness. Our concepts of property and how property behaves (the rules the property objects obey) is based on a lot of common sense, a lot of cases, general usage, custom, and the occassional sharp bit of lawyering. The OST ignored one of these general rules in Article VIII, that ownership is not permanent and inviolable for real world objects. Ownership can be lost or relinquished in all sorts of odd ways.

      Take dirt for example, because I’ve already brought it up. If I dig some dirt out of my yeard it’s definitely still my dirt. I can ship it anywhere in the world and I still retain ownership. But if I dump in my neighbor’s garden it becomes her dirt. If my land erodes onto a neighbor, it’s their dirt to claim if they like it and mine to remove if they don’t.

      When the desert wind blows sand onto your property, you don’t have to track down its rightful owner, nor can anyone come and demand its return. Any of my soil that washes away in a rain is lost and gone forever, any claim to it surrendered. (Thomas, not owning the water that flows across your land has been the standard law for at least the past 500 years. As it was put early on in Engilsh history, you don’t own the water but you own the land that contains it.)

      By instinct or usage, we all understand that we own every grain of dirt on our property, but any of our dirt that leaves the boundaries of our property, unless in some form of container, becomes part of the property where it ended up, unless the new owners object, can directly trace its source, and decide to sue for damages (such as the failure of a containment pond).

      So far the OST-bans-property side of the debate hasn’t shown any sign of recognizing these type of common sense complexities, which is why my Article VIII Bag Of Sand (I should trademark that) throws such a monkey wrench into everything. Even if the courts rule that Article IX allows private land claims, Article VIII sand dumped on someone else’s valid stake could force the claimants to sit through the treaty-mandated international consultations, because under the treaty the sand’s ownership isn’t relinquished like it was when I dumped dirt on my neighbor’s garden.

      1. Thomas Matula

        George,

        But the colonies were under English Law since England had sovereignty.

        [[[(Thomas, not owning the water that flows across your land has been the standard law for at least the past 500 years. As it was put early on in Engilsh history, you don’t own the water but you own the land that contains it.]]]

        But you have the right to use it under eastern Water law, you don’t have the right under western water law. Big difference.

        As for the wind blown sand grains, on Earth that is considered a natural process and not a issue because of Real Property Law, although it could be considered environmental damage which you could be liable for. In terms of the Moon or Mars, you would probably be lynched by the science community if you do it, and you would likely see a treaty that was even more restrictive then the Moon Treaty in terms of commerce and commercial activities as a result.

        And of course there is the practical problem of proving your grains of sand are still there and where there in the first place, not a trivial issue given the static electricity forces found on the Moon.

        1. George Turner

          It really didn’t matter whether England had sovereignty or not. Where ever a bunch of organized Englishmen end up, they’re going to settle their disputes and prosecute crimes under the laws to which they are accustomed.

          For example, Rhode Island was settled in 1636 by people fed up with other colonies. It didn’t get a charter until 1644, so it was not under British sovereignty for the first eight years. The New Haven colony was established in 1638, eventually claiming Philadelphia and southern New Jersey. It didn’t become a British colony until 1665, when it fell into the territory of Connecticut’s first royal charter, granted in 1662 (The Connecticut colony was settled in the 1630′s and went 30 years without a royal charter).

          Interestingly, the judges who signed the death warrant for Charles I fled to the New Haven Colony in 1661 to escape the jurisdiction of British forces. The people in all these settlements owned land, and that land was not owned through the king. They also wrote their own laws, in some cases throwing out English common law and basing their legal codes on Biblical law. People and property systems work just fine outside of any national jurisdiction. It’s how much of the US was founded.

          As for US water law, it’s extremely complex, varying both by state and county. The Eastern US is much more lax, generally leaving water rights as part of private property rights, whereas the Western states adopted top-down government models. The result was predictable. The Eastern states are awash in water and the Western states are largely bone dry. Maybe if you’d quite trying so hard to tax and regulate water, it wouldn’t be so reluctant to fall on your states.

          1. mrmandias

            You have the causal arrow backwards. The West was bone-dry which is why stricter water use laws were put into place.

        2. George Turner

          Oops. Posted the comment before I was done with it.

          As for the wind blown sand grains, on Earth that is considered a natural process and not a issue because of Real Property Law, although it could be considered environmental damage which you could be liable for.

          Depending on the type of deed, such as free simple, etc, you hold ownership to all the elements of the land (dirt, rock, ore, etc) within a specified boundary, extending all the wayto the center of the Earth. I assume in cases where boundaries are being listed as latitude and longitude (instead of “from the stream to the corner of 34th and Elm”) that corrections are implied for continental drift, as it would suck to move a fence every year.

          Under this system, all elements of rock, soil, and sand that end up on your land become part of the property. Similarly, all structures on the land are part of the deed, and permanent enhancements made to those structures becomes part of the property. This crops up regularly when renters make additions to a house. Those additions become the property of the owner, not the renter.

          In terms of the Moon or Mars, you would probably be lynched by the science community if you do it, and you would likely see a treaty that was even more restrictive then the Moon Treaty in terms of commerce and commercial activities as a result.

          Well, for one, no settler would fear being lynched by the science community. They would probably just shove the members of the science community into lockers or give them mega-wedgies, just like they used to do in high school.

          Secondly, how could the science community complain about adding sand, probably in boundary stripes, which would have absolutely no effect on lunar or Martian science? I don’t think counting up sand grain ratios is on anyone’s science agenda. Further, if the pristine quality of samples was so important, they wouldn’t be taking all their samples right where a big honking descent engine had just been firing, expelling a variety of organic and inorganic compounds and generally blasting dust all over the place on ballistic trajectories that extend for miles in every direction.

          Since the OST throws common sense out the window, any scientist could be sued by the settlers for landing and disturbing their pretty sand painting projects.

          And of course there is the practical problem of proving your grains of sand are still there and where there in the first place, not a trivial issue given the static electricity forces found on the Moon.

          Oh, that’s a trivial issue alright. The moon’s averge albedo is 0.12 while nice Puerto Rican beach sand has an albedo of about 0.5, so it would look four times brighter. You could literally make a big giant smiley face that would be visible from Earth. On a smaller scale, the Lunar Reconaissance Orbiter mapped it with 100 meter pixel resolution, so you could just add a small percentage of sand to a wide, geometrically obvious area (like a square or hexagon), and it would be strikingly obvious.

          But if you don’t want to go for sand, you could take along a bundle of thin carbon fiber rods and a spool of thin magnet wire and set it up like a conventional barbed wire fence, starting humanities first space ranch, which would go back to the tradition that if you fence it in you own it.

          Carthage was founded by just such a clever scheme when a visitor was told they could have as much land as could be encompased by a cow’s hide. So they cut the leather into a string and claimed land enough for a large city. I’ve always wondered why the Romans were so intent on razing it to the ground, but now I understand that people like you agitate for such actions, supporting the Roman concept that all land is the property of the Republic.

      2. mrmandias

        You and Matula aren’t as far apart as you think. I read him as also favoring “oprganic” growth of real property rights under the initial framework of the OST, instead of under the initial framework of a Space Settlement Initiatives Act or some kind of LUnar Homestead Act.

  15. ken anthony

    force the claimants to sit through the treaty-mandated international consultations

    Sane people see this as a bug. How do you deal with those that see it as a feature?

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