Property Rights

Lunar Licensing: Promoting and Protecting Private Business on the Moon

Why not instead an interplanetary Homestead Act and Mining Law?

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LunarHotel
Bigelow

Last year, Bigelow Aerospace, a company that is developing inflatable outer space habitats, asked the Federal Aviation Administration (FAA) to consider using its licensing powers to protect private sector assets on the Moon. The company is aiming to set up such a base by 2025. Earlier this month, the agency issued a letter assuring the company that would it use its licensing powers in such a way as to prevent harmful interference from other private companies that the agency would also license.

So why can't Bigelow and other companies simply make a claim to a couple of square kilometers of the Moon and start hotel operations, mining, or any other activity that it believes will be profitable? Short answer: The Outer Space Treaty of 1967. Article II of that treaty 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.

In addition, Article VI states:

The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

The idea embodied in the FAA letter is that the requirement for "authorization and continuing supervision" gives the FAA authority to license private activities of American companies. Once licensed, the State Department would be able to negotiate agreements with other countries to respect the the perquisites of FAA lunar licensees.

Why not just say to hell with it and throw the whole treaty away? After all, Article XVI allows:

Any State Party to the Treaty may give notice of its withdrawal from the Treaty one year after its entry into force by written notification to the Depositary Governments. Such withdrawal shall take effect one year from the date of receipt of this notification.

Well, maybe because the development of the the American frontier was guided and regularized by what amounted to licensing schemes. As space exploitation develops, the Outer Space Treaty will need to be amended to include provisions similar to the Homestead Act of 1862 that governed how property rights to federal lands were divvied up and the Mining Law of 1872 which allowed miners to make claims to explore for minerals and establish rights to federal lands without authorization from any government agency.

The legal situation with respect to exploiting the Moon could have been worse. Consider this provision from the 1979 Moon Treaty:

Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof.

Fortunately, the United States has never signed that document.

For more background, see my colleague Katherine Mangu-Ward's excellent article on the current state of private space exploration, "Rocket Men." See also my article, "Does Mars Have Rights?"

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  1. Private enterprise on the Moon.

    1. I thought that was a pretty good flick

      1. If it’s the one I’m thinking of, that movie was absolutely awful.

        1. It’s the one about Sam Rockwell and his twin with the flu drivin’ moon trucks.

    1. Thanks. That’s two minutes of my life I’ll never get back.

  2. By the time humans are ready to colonize the moon, the nation state will have expired, thankfully.

    1. We won’t be much of a space faring civilization if statism doesn’t wither and die.

      1. No, statism will drive space faring if there is war to be made.

    1. I don’t know what it says about me that I’m seriously considering watching that.

      Nothing good, I’m sure.

      1. It’s actually a pretty funny movie. I really liked the part where Sarah Palin-styled American President announces her strategery to confront the Nazi menace to other world leaders.

      2. I think I watched it on Netflix. It wasn’t terrible.

    2. I hate moon nazis.

  3. Of course, mankind will screw things up:

    http://en.wikipedia.org/wiki/Space:_1999

    1. Hey, it didn’t go that bad. Sure, they blew the Moon off orbit but they had a very efficient Eagle factory which kept them well-stocked with vehicles and parts for years.

      1. True. I sometimes think there would be a great disaster movie covering what happened to Earth once it no longer had a moon.

  4. What’s really needed is legal protections for earth-based assets of lunar companies, because, let’s face it, if lunar companies or their employees are doing something illegal, what are you going to do about it? Send them a strongly worded letter via pony express?

    Nope, you’ll file a lawsuit against the earth-based parent corporation and in 3 to 5 years you might get a court order.

    How about LLLCs, lunar limited liability corporations, which insulate earth based private companies from the legal liability of their lunar subsidiaries.

    1. I suspect that any company that achieves successful long-term colonization of the Moon will evolve into an East India Company-like quasi-sovereign government-regulated colony anyway.

    2. How about LLLCs, lunar limited liability corporations, which insulate earth based private companies from the legal liability of their lunar subsidiaries.

      Why create a separate set of property norms and laws? There’s no reason why common law property rights can’t be extended to the moon just like they can be extended to an island off the North American coast.

      1. There’s no reason why common law property rights can’t be extended to the moon just like they can be extended to an island off the North American coast.

        Except the fact that it will be, with 75% probability, the Red Chinese who whip out their collective dicks and claim the Moon first by pissing on it. From the very beginnings of the Shenzhou program, the Chinese have stated that it’s just prologue for both manned and robotic exploration and exploration of lunar resources. Normally, I would bet on the creative disruption of the entrepreneurial free-market of the 25-year-plans of a quasi-command-economy. But that entrepreneurial free-market doesn’t exist here. The best SpaceX, Orbital, and ULA can do is be government contractors; currently, we have no serious private sector corporation with launch ability that could threaten potential Chinese hegemony over lunar mining.

        Now, don’t get me wrong, this isn’t Chicken Little hysteria of ‘Commies invading the Moon’. I’m just pointing out the fact the Chinese government is serious about lunar exploitation and has been working towards that goal for some time now, while no one else has. Unless this changes, it is highly likely that the first long-term manned presence on the Moon will be Chinese sponsored. And he who has the lunar regolith makes the rules.

        1. I will say this–it’s a no-joke national security matter that North Americans and Europeans who don’t speak Russian get way ahead in the colonization and exploitation of space.

          That doesn’t mean we militarize space, which we couldn’t afford to do, anyway. What that means is that we get up there in large numbers, for tourism, mining other commercialization, science, etc. The best legal approach in my mind is the fait accompli of being there.

          1. The best legal approach in my mind is the fait accompli of being there.

            My point exactly.

            1. + nine points of the law.

        2. What are the odds of the Chinese making a positive ROI on moon harvesting?

          1. There is no cheap labor in space, so none.

          2. What are the odds of the Chinese making a positive ROI on moon harvesting?

            If you’re talking about currency, at the beginning, none.

            If you’re talking about the propaganda value of images of Yutu 2 “accidentally” knocking over the American flag in the Sea of Tranquility, one-hundred-fold.

            However, as robotics evolve, the feasibility of lunar mining increases. Just think, all the way back in 1970, the USSR was able to send a robotic probe to the moon to collect lunar soil and return. With all the advances that will have occurred by the time we’re ready, there will be no reason to have people on the Moon if all we want to do is mine.

            1. The real issue is cheap access to orbit. If we achieve that, then the whole robots vs. humans debate is moot. . .at least until robots surpass humans.

              1. If we achieve that, then the whole robots vs. humans debate is moot.

                Not really considering the physiological effects microgravity has upon humans. Just as one example, while we can retard the atrophy of bone and muscle mass in micro-G, we really haven’t found a way to prevent it from occurring in the first place. Much less the radiation shielding needed once you leave Earth’s magnetosphere.

                1. Get places faster. Also, why not just use spin to simulate gravitational effects on longer missions?

                  The first nut to crack is access to orbit for peanuts. Get that, then the rest is much easier.

                  1. Also, why not just use spin to simulate gravitational effects on longer missions?

                    That’s one solution. As I understand it, it’s mostly an engineering problem. Your design would have to incorporate a propulsion system which would require fuel that would add weight to the launch or a motor that would probably require solar panels or another power generation source like a RTG or something.

                  2. why not just use spin to simulate gravitational effects on longer missions?

                    Spin is a problem, depending on the radius of rotation. Any rotation to produce 1G would require a radius of almost a mile to not fuck up the equilibrium of the human occupant (at least this is what a text from 20 years ago claimed).

                    I always thought the way to go would be to have a central propulsion system providing thrust and then put the crew quarters on a long tether and rotate it around the propulsion system (it would, of course need to compensate for the wobble caused by the centrifugal force).

                    I think the only solution to the radiation problem is to create a magnetic field around the ship. That will require a huge source of power, which we obviously don’t have yet.

                    1. Along with cheap access to orbit, we could also use some fusion reactors.

            2. I guess my question is, is there anything valuable enough on the moon to justify mining? I know He3 can theoretically be used in a fusion reactor, but that is a big if.

              1. is there anything valuable enough on the moon to justify mining?

                Well, the first step in mining is prospecting.

            3. With all the advances that will have occurred by the time we’re ready, there will be no reason to have people on the Moon if all we want to do is mine.

              What are we going to mine on the moon that can’t be mined on Earth for 1/1000th(?) the cost?

              We won’t be there until there is a cheap way to orbit.

              1. The total key to everything is cheap access to orbit. Get that, and the rest will follow.

                It shows how fucked up it is to leave government in control of a potential industry like this, since the sole mission of NASA should’ve been getting launch costs way down. Do that, and commercials exploitation, science, heck, everything, become possible.

                That’s why I like SpaceX so much–they’re clearly focused on that goal, more than anything else. Cheap, cheap, cheap.

                1. That’s why I like SpaceX so much–they’re clearly focused on that goal, more than anything else. Cheap, cheap, cheap.

                  And that’s why space exploration will be a private matter. Even once the market gets costs down, the state space programs will never get as much “investment” as the private sector will be able to get to acheive their goals. I see a future where state space agencies will dedicate themselves solely to the extortion, expropriation and oppression of private space faring companies.

                  1. Yes, I worry about some ugly times ahead. If you can’t beat the competition, just use force.

            4. propaganda value of images of Yutu 2 “accidentally” knocking over the American flag in the Sea of Tranquility

              ? diminished because those flags have long since been bleached white by sunshine.

        3. Except the fact that it will be, with 75% probability, the Red Chinese who whip out their collective dicks and claim the Moon first by pissing on it. From the very beginnings of the Shenzhou program, the Chinese have stated that it’s just prologue for both manned and robotic exploration and exploration of lunar resources.

          Which is all the more reason why rules of property will arise naturally, whether it’s claims between states or private companies. All parties involved will want to extract resources with the least amount of cost. Competing claims that turn into violent conflict are very costly. The avoidance of conflict is therefore in everyone’s best interest. The best way to avoid conflict over scarce resources and the only reliable way to mitigate conflict over scarce resources; property rights. The only hurdle is overcoming the prisoner dilemma you’ve raised which is a valid concern, but which shouldn’t be a problem as long as private enterprise takes the lead in extracting and developing those resources.

          Space exploration will be best done by private enterprise and eventually state space agencies won’t be able to compete with private ones, short of pulling a gun on them back here on earth.

          1. I agree with you; however, we must acknowledge that the Chinese government aren’t rational actors in this. China views their space program as a prestige-generation machine that will finally put to rest the whole “Sick Man of Asia” thing has has rested on the Chinese psyche for a century. Case in point, the Chinese were willing to risk a runaway Kessler Syndrome event that would have block space exploration for the entire planet just to flex their muscles with an anti-satellite weapons test. Debris from this test flew dangerously close the International Space Station. And the Chinese response to criticism over their actions was just to hrumph about Western imperialist policies that seek to contain the ambitious of the Chinese people.

            So, you ask about pulling a gun on Earth? No, the Chinese government is too clever for that. They’ll wait until low Earth orbit.

            1. God, I need to stop thinking in Sino-Tibetan analytic grammar when writing about China.

            2. I agree with you; however, we must acknowledge that the Chinese government aren’t rational actors in this. China views their space program as a prestige-generation machine that will finally put to rest the whole “Sick Man of Asia” thing has has rested on the Chinese psyche for a century.

              But the assumption is that an irrational actor will be able to out-compete rational ones, and private rational actors even, in the field of space exploration and exploitation.

              So, you ask about pulling a gun on Earth? No, the Chinese government is too clever for that. They’ll wait until low Earth orbit.

              If the war were to take place in orbit or government space agency vs militarized space agencies, I’ll take the low cost private agencies any day. Maybe not here on earth, but one is limited in the amount of military force they can project into space and the private sector would do so at a fraction of a fraction of China’s costs.

              Think Battle of Thermopylae… in space. The sum total of their might would be bottle-necked by economic reality.

        4. Chinese government vs. American private enterprise? I’d give the chinks a decade head start and still bet on private enterprise to get there first.

          1. What “American private enterprise”? Again, all we have are government contractors who are subject to FAA regulation concerning when, where, why, and how they can fly.

  5. Is this going the way of Rotherham?

    http://www.telegraph.co.uk/new…..-ever.html

    When future generations look back on the global-warming scare of the past 30 years, nothing will shock them more than the extent to which the official temperature records ? on which the entire panic ultimately rested ? were systematically “adjusted” to show the Earth as having warmed much more than the actual data justified.

    In this instance, “adjusted” apparently means “blatantly falsified”. Hopefully future editions of the OED will reflect this.

    1. Deniers, all! The Science. Is. Settled. Because Top. Men.
      /Tony

  6. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

    KKKORPORASHUNZ!

  7. We haven’t nuked that thing yet?

    1. I think we have this backward – we need to launch the nuke FROM the moon to take out Earth the Stupid.

      Just to be sure…

      1. I prefer a de-evolution monkey virus, ala cowboy bebop.

        1. How you doin’, space cowboy?

          1. I have a cold. How’s Montana? Did that reason guy ever show up on your doorstep?

            1. Los Doyers! It just came to me.

              1. Hah! You know, he didn’t. I was waiting, bonesaw in hand…

                Montana is going through its…fifth? Yeah, fifth month of winter. Only two more months until the chance of snow rapidly declines!

                1. Bonesaw….now that I think of it I haven’t seen Los Doyers in a while.
                  /looks for closest exit

                  1. I’m sure he’s just tied up right now…

                    1. *chuckles politely, notices door knob has been removed*

    2. Technically, we did when the Moon was blasted out of orbit on September 13, 1999.

  8. M-O-O-N! That spells Moon!

    /almost forgot

    1. Weird. I just finished watching that last night.

  9. We need to flat-out repudiate any provision of any treaty that restricts property rights in outer space. There are precedents with granting rights with use–in other words, planting a flag on a world doesn’t give you ownership of it, but the places you use are yours so long as you’re using/occupying them.

    I just got back from a trip to KSC (to watch a non-launch of a Falcon 9), and it’s obvious that–mostly thanks to SpaceX–we’re about to be back in the manned spaceflight business in a much bigger way. As soon as that happens (especially if launch costs get down low enough), Bigelow and others will make their move.

    Incidentally, for those with the opportunity to go there, the new Atlantis exhibit is pretty good. I’m not a fan of the cost or politics of the space shuttle, but it’s still an impressive machine. I also really like the Apollo/Saturn V exhibit, but that’s been there for a while.

    1. Bigelow and others will make their move.

      Space gigolos?

      1. You’re thinking of the whoretels. That’s just a subset of the overall tourist effort.

        1. Will there also be black jack?

          1. Of course! It’ll be the Wild West out there. Like the movie version, not the real one.

            1. If you need me FloridaWoman, I’ll be in space.
              /runs around room in underwear making rocket sounds

              1. It is likely that most manned launches to orbit, once things get going, will be from Florida. A Florida-dominated solar system. Yes, trailers on every world.

                1. I would never stop laughing if space was colonized by floridians. I can’t even imagine what that would look like.

                  1. A lovely place full of crazy people.

                  2. Airboat rides on Venus and bagels on every planetary satellite

                    1. Bugs everywhere. In little bug spacesuits. Or maybe mini robots with bug brains?

                    2. Space meth, boiled p-nutz next to orbital refueling stations, alligators in zero-g suits.

                    3. Mmmmm, space boiled peanuts.

                  3. Old people…
                    in….

                    SPAAAAAAAAAAAACE!

                    1. That’s one prediction of science fiction that makes total sense. In fact, I was talking to someone at KSC about this very issue this past weekend. Lower gravity may very well be a better environment for many older people.

                    2. Floating fat man suits for everyone.

                    3. History of the World, Part II?

                    4. I see your prescription pill container is as big as mine!

                  4. Pythons for everyone. There be snakes on this motherfuckin’ space shuttle.

                    1. Suddenly that scene in the Empire Strikes Back with the space python makes sense.

                    2. A long time ago in a reclaimed swamp far, far, away.

                  5. Soon to be overrun by Space-Newyoricans and carpetbaggers from Space-New Joisey.

  10. 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.

    Tell that to our inevitable alien masters.

    1. That could be awkward if we find out that the solar system has already been legally claimed by aliens in space court.

      1. That’s my point! How do we know that the Moon isn’t just an undeveloped piece of property, owned with full Deed and Title by Blarg of Alpha Centauri?

        1. Just wait until humanity gets an eviction notice for the third planet from the sun.

          1. But we’re indigenous! Oh wait…

            1. Indeed. And we’re fucked if we try to make that argument, given our history as a species.

      2. We already filed our claim to the nearest 5 billion lightyears.

  11. Capital City will see to it that the central planets are a wonderland of peace and technology. All citizens have enough to eat. They work in glistening skyscrapers and live in high-rise apartment buildings. The grass is green and the skies are clear and no one asks for anything.

    Me, I’ve no need for such and wish to be left be. I spect I’ll be findin my peace out on the Rim.

  12. There’s nobody currently inhabiting the moon. It’s bloody expensive to get there. It’s a huge surface area. Not seeing why anyone would feel the need to get the permission of some earth-based government to set up operations there. Other than governments possibly trying to prevent flights off the Earth, seems like it’s de facto anarchy up there right now and for the foreseeable future.

    Just set up operations and don’t ask for permission.

    1. I think the issue is if you want to send anything back to earth (money, resources, etc.). If you want to stay and do a local economy, I agree, but who has the juice to do that?

      1. I think the issue is if you want to send anything back to earth (money, resources, etc.).

        …giant death rocks…

        1. +1 Service = Citizenship

      2. Blue Seed?

  13. “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.”

    Wow, the nations of Earth will totally obey that treaty clause as they begin settling outer space!

  14. 1 tiny pock-scarred moon. HA! you fuckers let me know when you’re ready to make some real money. Jupiter has at least 63 moons. KA-CHING!

  15. Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State

    So… No roadz on the Moon?

    1. Nah. Bad-ass jacked-up Rovers for everybody!

  16. What I’m more interested in is some of those ‘settle on Mars permanently plans. Because what’s to stop those colonists from just blatantly ignoring attempts to enforce Earth-based sovereignty, outside of possible resource demands?

  17. Pro Demonocles Insurance offers discounted rates for lunar properties.

  18. the development of the the American frontier was guided and regularized by what amounted to licensing schemes.

    Because god knows we can’t live without govt-organized cartels.

  19. my best friend’s sister makes $61 hourly on the computer . She has been without a job for 8 months but last month her income was $15147 just working on the computer for a few hours. this page…………..

    ????? http://www.netpay20.com

    1. Your best friend’s sister is a whore

  20. This is a good idea, but I think perhaps regulating and critically evaluating mining claims, on an international level, might be optimal, in my opinion:
    http://toboldlygoforth.blogspo…..ms–2.html

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