The Case for Private Property Rights on Other Worlds

With all the talk of the commercialization of space, very few people are discussing a potential stumbling block that has to be dealt with before humans return to the Moon. Under the Outer Space Treaty, drawn up in the mid 1960s, it is very nearly impossible to own anything on any celestial body such as the Moon. There is no body of international law, readily accepted by most nations, that even governs private ownership of land, mineral rights, or even human built infrastructure on the Moon or any other body in the Solar System.

The pertinent article of the treaty is Article II, which reads, "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." The problem is that private property rights are determined and defended by a sovereign nation. Absent sovereign authority, property rights can be determined by international treaties. But with sovereign authority forbidden on the moon and "other celestial bodies" and no international treaty governing private property on other worlds, there is literally no body of law governing such things.

An attempt was made to address this problem in 1979, with the Agreement Governing the Activities of States on the Moon and other Celestial Bodies or what is commonly referred to as the Moon Treaty. However, the provisions of the Moon Treaty were so onerous to the idea of private property in space that no space faring country is a party to the treaty. Article 11 of the treaty flatly forbids private ownership of any part of the Moon or any celestial body and calls for the establishment of an international regime to govern the exploitation and distribution of natural resources in space. No commissar in the old Soviet Union could have come up with provisions more hostile to private development or business.

Any legal framework regarding private property on celestial bodies remains in limbo. Absent such a framework, one would attempt to claim property on a body such as the Moon and develop it at ones peril. There is no body of law suggesting that one could own such property or keep it once claimed.

By the way, organizations such as the "Lunar Embassy" claiming to have the power to sell lunar land are, in the opinion of this writer, perpetrating a fraud. There is no body of law suggesting that one actually owns the land which such organizations "sell." The parcels of land being sold have as much worth as the paper upon which the certificates are written on. One might as well buy the Brooklyn Bridge.

Clearly, before private development of the Moon and other celestial bodies can proceed, something has to be done. There are two ways that private property rights can be established on bodies such as the Moon.

The first way is that the United States could withdraw from the Outer Space Treaty and claim the Moon as national territory, based upon the Apollo Moon landings, or, that being insufficient, as soon as the envisioned Orion-Artemis vehicle returns human beings to the Moon. There are two problems with this.
First, withdrawing from the Outer Space Treaty would also abrogate provisions of the treaty which are to the benefit of the United States. An example of this is the provision that requires astronauts of one nation to render aid to astronauts of another nation at need.

The second problem is that an absolute expropriation of the Moon would cause a diplomatic row on Earth of unpredictable dimensions. Accusations of "imperialism" and "unilateralism" will be used by other nations to attack the United States. The consequences of this unhappiness on the part of other nations will be difficult to measure. This will happen even though the United States is the sole nation, with the possible exception of China, capable of accessing the Moon in the foreseeable future.

The diplomatic consequences of claiming the Moon as American sovereign territory could be mollified in a number of ways. The United States could cast itself as a guaranteer of free access to the Moon by other states and private entities. By providing a rudimentary government infrastructure and rule of law to the Moon, the United States could facilitate the peaceful exploration and development of the Moon. The drawback is that there would likely be lingering resentment over the fact that such would be done by American rules, with little or no input by other states,

The other method of dealing with the question of private property on the Moon is by international agreement, either as an amendment to the Outer Space Treaty or as a brand new treaty. It would be a treaty which-unlike the Moon Treaty-would define and defend private property rights on other worlds rather than oppose them. Interested states would agree to a set of rules concerning private property rights and set up some kind of commission that would regulate and defend them.

The first task of such a commission-call it the International Lunar Commission - would be to divide the Moon up into acre parcels, excluding such areas of historical and scientific interest such as the Apollo landing sites. Then these parcels could be put up for sale to any interested parties on Earth. The proposed treaty would define the rights of any property owner of lunar land, including mineral rights and rules for development of the land. A market for lunar land could be set up to facilitate the buying and selling of lunar land, which would facilitate determining the value of the land after the initial sale.

A Space Private Property Treaty has its own problems, of course. Other interested states have different notions of what constitutes private property and property rights than does the United States. These differences may be difficult to iron out in negotiations. Also, other countries, either because their perceived national interests differ from those of the United States or simply out of pique, may throw up road blocks to the successful conclusion of a Space Private Property Treaty. However, once concluded and implemented, such a treaty would solidify international consensus for the private development of celestial bodies such as the Moon and serve as a precedence for other destinations, such as Mars.

The money raised from the initial sale of land on the Moon should be enough to cover administrative costs of the International Lunar Commission. There could even be enough left over to help pay for science and exploration of the Moon and other celestial bodies, as well as the eventual development of infrastructure such as power, water extraction, oxygen extraction, and surface transportation.

There is one last potential controversy that needs to be addressed. There is a faction of the environmental movement which would forbid the private development of the Moon or any other celestial body. The Moon and Mars, for instance, would be reserved-at best-as science reserves, much like Antarctica. The motives for this range from a kind of emotional, deep ecology attitude that disdains capitalism and private development as being harmful to the environment to a real concern that private development and large scale settlement could interfere with scientific exploration, such as the search for microbial life on Mars.

Nevertheless, as the 21st Century proceeds apace and as support grows for human exploration beyond Low Earth Orbit, the opportunity exists to greatly enhance life on Earth by the economic development of space. Energy resources on the Moon, such as Helium 3, could help fuel the burgeoning need for power to run technological civilization on Earth. A new industrial revolution, using the unique properties of micro gravity and hard vacuum, fueled by extraterrestrial resources from the Moon and Earth approaching asteroids could become a source of wealth and prosperity on Earth.

The dream of Mars as the "new branch of human civilization" could become a reality later this century. The Moon, Mars, and other destinations in our Solar System could be to the people of the later 21st Century as California and Oregon was to people in the 19th Century. The ability to summon that future is in our hands.