Lunar real estate rights

"Lunar property rights"

Hard cheese

by

K.R.

February 16th, 2014

The Economist

WHO owns the Moon? According to the United Nations Outer Space Treaty, signed by every space-faring country, no nation can claim sovereignty over Earth’s lunar satellite. 102 countries have entered into to the 1967 accord; China joined in 1983. But space law scholars debate whether the Treaty actually implicitly prohibits, or allows, private ownership on celestial bodies.

Some commercial companies, such as Bigelow Aerospace, are hoping to use the ambiguity of the treaty’s language to their advantage. Founded in 1999 and based in Las Vegas, the firm aims to manufacture inflatable space habitats. It already has an agreement with NASA to expand the International Space Station in 2015 using its flexible modules, and also to devise a plan for a privately developed, NASA financed, lunar base architecture.

The firm’s chief executive Robert Bigelow, a billionaire hotel owner, wants to establish private property rights on the Moon in a bid to tackle Chinese lunar dominance. He believes “the final nail in America’s 21st century coffin is likely to be China’s takeover of the Moon.”

Bigelow Aerospace’s case rests on careful consideration of the Outer Space Treaty’s article II and VI. The first’s explicit ban on national appropriation may leave the door open for non-national moon ownership. The second decrees that countries bear “international responsibility” for activities in outer space—even if carried out by non-government groups.

For schemes in space (such as mining fusion fuel from the moon, a perennial favourite of wild-eyed space cadets) to be worthwhile commercially, Bigelow Aerospace says a legal framework for private lunar property is needed, and reckons the American government should be involved in creating one.

Consequently, two months ago Bigelow Aerospace formally submitted a related request to the Federal Aviation Administration’s Office of Commercial Transportation (FAA AST). The case is now being vetted by agencies including the State Department, Department of Defence, NASA and the White House’s Office of Science and Technology Policy (OSTP) as part of a standard review for any proposed private space “launch”, “re-entry” or “payload” activity.

The application is not directly seeking private property rights or exclusive ownership of lunar resources; the company is requesting government, and by extension, Outer Space Treaty, assurance that its private spacecraft can run without interference or possible collisions with licensed vessels already in operation. In other words, Bigelow Aerospace is asking for the ability to use the moon and its resources in order to shore up its capital investments.

Whether such usage equates to property rights or ownership is an international legal debate. Bigelow Aerospace lawyers point out that an effective national and international licensing system has meant that satellite companies operate successfully and peacefully without actually owning the space they occupy.

The company also contends that FAA AST commercial licensing requires a 200km (124 mile) buffer zone of operation for each spacecraft. This means the government is obliged already to maintain safe operations in space, limit liability and prevent crashes between private entities that could cause damage on and around the Moon.

The company believes it is entitled to similar treatment. “Failing to approve the payload review request would in many ways represent an abdication of US obligations under the treaty,” Michael Gold, Bigelow Aerospace’s chief counsel, tells this Babbage correspondent.

In addition, the lawyers say an international custom has been established giving private entities the right to use and explore space as long as states authorize them to do so, and continuously supervise their workings.

The space firm hits back at claims that it is flouting Article II of the Outer Space Treaty precisely because “Bigelow Aerospace is a company, not a country” and so “cannot engage in national appropriation,” according to Mr Gold. He argues that as FAA AST licensing only pertains to commercial activities, its regulatory decisions could not be in violation of Article II.

A decision regarding Bigelow Aerospace’s request is expected by the Summer.

The Outer Space Treaty was not signed, however, by countries wishing to replace national lunar colonization with commercial colonization. But the time for pragmatic policies in the face of Beijing’s blooming space programme may be at hand. Building on the success of the Chang’e-3 mission with the Yutu rover (currently rolling on the lunar surface), China expects to put a base architecture and crew on the Moon within the next ten years.

The optimistic scenario for Bigelow Aerospace and American lunar ownership advocates is a new space rights pact within a decade—before China’s dominating presence on the Moon makes such agreements moot, and territorial disputes, akin to ancient wars fought over empires, begin anew in space.