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One Small Step for Business
Under the 1967 Outer Space Treaty — to which the United States is a signatory — neither nations nor private citizens can make territorial claims on the Moon or other celestial bodies. However, this doesn’t mean that people can’t use resources they find there. If you want to mine for Helium-3 or water, go right ahead; just know that you can’t legally claim the mine as your own or keep anyone else out, any more than a fisherman can keep other people away from a school of tuna (admittedly, it’s a little unclear whether you can sell those materials back on Earth as your property).
From a property rights perspective, this is a shame in that it discourages exploration and development. Besides being cool, this means that there are resources sitting there that potentially aren’t being used simply because we haven’t adopted a legal framework that allows people to profit from their work. Still, it could be worse: neither the United States nor any other space-capable country signed the Moon Treaty, which explicitly banned commercial operations on the Moon. As if that isn’t bad enough, the language it uses is the sort that most Model UN participants would find too utopian, collectivist, and bureaucratic (“The Moon and its natural resources are the common heritage of mankind… 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.”).
Fortunately, there’s been a smidgeon of good news on the subject. It’s been revealed that, late last year, the FAA wrote a letter to an American aerospace company confirming that it would use its licensing authority to keep other (American) companies out of its way if it proceeded with its planned moon base:
The Federal Aviation Administration, in a previously undisclosed late-December letter to Bigelow Aerospace, said the agency intends to “leverage the FAA’s existing launch licensing authority to encourage private sector investments in space systems by ensuring that commercial activities can be conducted on a non-interference basis.”
In other words, experts said, Bigelow could set up one of its proposed inflatable habitats on the moon, and expect to have exclusive rights to that territory – as well as related areas that might be tapped for mining, exploration and other activities.
…
“We didn’t give (Bigelow Aerospace) a license to land on the moon. We’re talking about a payload review that would potentially be part of a future launch license request. But it served a purpose of documenting a serious proposal for a U.S. company to engage in this activity that has high-level policy implications,” said the FAA letter’s author, George Nield, associate administrator for the FAA’s Office of Commercial Transportation.
To reiterate, this means that the FAA would refuse to grant a launch license to other American firms who proposed to land near Bigelow’s location (though it couldn’t prevent Russians, Chinese, and Europeans from doing so). It’s not quite property rights, but it’s an incremental step in that direction.
While I’d prefer we just amend or withdraw from the Outer Space Treaty (processes for each are described within), here’s an alternative option: if enough American firms built moon bases with contiguous territories — all of which are required to recognize and respect each others’ “territories” — and assuming that no foreign rival wants to deal with the trouble of creating an international incident, wouldn’t that de facto constitute a territorial claim, without having to amend or withdraw from the treaty?
Published in General
Great! Then the US gets first dibs on stifling all that innovation in it’s infancy. Let’s spread collectivism throughout the universe!
Despite that sad note, it’s good that there’s some real attempts to colonize the moon.
How long until environmentalists decry the defacement of our pure natural view of the barren moon?
Yesterday?
When I wrote “From Lunar Outpost to Permanent Moon Base” for Ad Astra back in 2008, I briefly mentioned strip mining. I was asked to remove the bit, because it would upset some of the environmentalist types, who felt we would be harming the Moon.
I pointed out the Moon is a lifeless rock, without a biosphere to be harmed. The editor agreed, but said it wasn’t worth stirring that particular hornet’s nest. Since I was being paid, and the issue was peripheral, I removed it. The Golden Rule, you know (the one with the gold sets the rules).
Seawriter
Would you prefer a future where it’s impossible to escape the bright glare of all the moon’s cities?
Once humanity fully populates the moon it’ll mean the end of truly dark nights. Good bye stargazing. Good bye Earth-based astronomy.
;-)
Also, surely folk here have read Kim Stanley Robinson’s MARS trilogy, where the evil developers are the “greens” (because they want to turn the red planet green with plantlife) and the environmentalists are the “reds” (because they think the red planet should remain red).
So, wait, giving the US government the authority to ban private citizens from leaving the surface of the planet on their own accord is a step towards greater liberty?!
it’s a little unclear whether you can sell those materials back on Earth as your property.
Not really. There is established precedent for this from both Apollo and Soviet sample-return, in which lunar rocks have been exchanged for items of value.
I had an extensive essay about this at The New Atlantis a couple years ago.
No, it’s a prohibition of other firms from claiming the same territory already claimed by say, Bigelow in this example. It’s like protecting miners from claim jumping or keeping farmer Valdez from grazing his cattle on farmer Steiner’s land without Steiner’s permission. That is a step toward greater liberty because it is a step in the direction of securing private property rights on the Moon.
Tom: I agree. We should withdraw from the treaty. Contact your senators and congressmen now. Also- are you familiar with Bill Whittle’s “Free Fontier” project and if so what do you think of it?
When I read that the United States government has granted a 100 year hiatus from corporate income tax to the first private firm to establish a base on the moon, then I’ll get excited.
The whole enterprise is unenforceable. No nation would be able to control what happens outside of their borders, as return shipments of such commodities would likely splash down in the middle of the Pacific, and they’d lose their identity in the larger pool of available materiel. The other issue is that most commercially important minerals or elements on the moon might just be cheaper to create/mine terrestrially.
The one item which is currently valuable enough in small quantities to be worth going out to get (moon rocks) would paradoxically have their relative value destroyed by greatly increasing their availability. Only 822 or so pounds of Moon Rocks have been returned to the Earth and they’re quite valuable if for no other reason than their rarity and the expense of retrieving them – but if a commercially large quantity of them suddenly appeared on the market the price per pound would go from roughly that of cocaine down to… well, something much less expensive than Colombian Snow.
The same likely holds for other commercially important minerals that might be mined in space. Dumping a commercially/economically viable quantity of that substance (such as you’d have to do in order to justify an expensive and dangerous mission to space) would have the second order effect of crashing the price, thus destroying the reason for the enterprise in the first place.
Except the FAA doesn’t have jurisdiction over Lunar “airspace” (AFAIK), so why the heck does it get a veto over private launches when the projected flightplan is outside the territory of the United States?
What will the FAA do if a spacecraft launches from Earth and changes its heading mid-flight? Shoot it down?!
The whole concept of the FAA regulating spaceflight is pretty ludicrous.
One might even call it … lunacy!
[ rimshot! ]
The more that the FAA tries to strengthen it’s control over spaceflight, the more incentive there is to build launch facilities elsewhere, closer to the equator.
I saw Glenn Reynolds article on this and thought about posting on it. Glad you did :-D.
Here’s more analysis from U of Nebraska space-law professor Matt Schaefer.
The whole concept of the FAA regulating spaceflight is pretty ludicrous.
The U.S. government is obligated under the OST to supervise space activities of its persons. That applies even to US citizens or corporations launching from a non-U.S. site. The Commercial Space Launch Act has designated the Department of Transportation as the responsible agency for this activity. It doesn’t have to be the FAA per se (that was an administrative decision made in the Clinton administration), but it does have to be DoT, statutorily, since the Reagan administration.
Try filing a flight plan where the flight ends in North Korea (just “because”) and see what happens.
Seawriter
The other aspect of this that always surprises me and frequently causes me to shake my head is the “Underpants Gnomes“-like quality of people’s plans to mine asteroids and other objects in space. The “Step 1: Mine Asteroid; Step 3: Profit” plan leaves out a massive Step 2 that makes it somewhat incredible.
Most mining practices that we use on the Earth involve prodigious quantities of water to extract the desired minerals, chemical treatments, heat, air and gravity. All of these things are somewhat difficult to come by in the vacuum of space on a small object in an irregular orbit. The Moon may have some of these things in quantities like those necessary to make extraction feasible, but it even stretches credibility to think this can be done. The energy requirements alone are daunting; short of orbiting an unshielded nuclear reactor as your power source (good luck getting a permit for that) you still have all of the issues that plague terrestrial mining, such as the need to have drill bits and other replacement parts, chemical explosives, (possibly) heavy equipment or advanced lasers as a means of performing the mining operation itself.
A person could simply attempt to extract the ore from an asteroid and crash it back onto the Earth, but barring some very high concentrations of very expensive materials this isn’t a viable option as the quantity of ore we’re talking about is fantastically large compared to the amount of material obtained… and you still have to process it terrestrially at that point.
I don’t want to throw water on the whole enterprise because plenty of people pooh-poohed things that we did which are seemingly as simple as landing men on the Moon and returning them safely… but the thing is, they weren’t simple. They weren’t cheap. They were highly dangerous and pushed the available technology to its limit with very little margin for error. The private sector is of course inherently better at accomplishing these things than Governments, but that doesn’t necessarily mean that even they can put a shine on a turd.
So, now, the moon is an enemy of the United States?
Yet another reason for rich folk to renounce their US citizenship…
Why do you think IMAO’s slogan is “Nuke the Moon?
Besides, according to America’s Commander-in-Chief, North Korea isn’t an enemy, just misunderstood.
Seawriter
I think Misthiocracy has a point; that by saying “we’re allowing this” the FAA is abrogating to itself the ability allow or deny this sort of thing. On the other hand, Tom is essentially correct that in the world we live in this is an advance. Majestyk is also correct that any sort of space industry is currently ruinously expensive. In the light of that I think our best bet would be to knock down all artificial barriers to space travel; to strike off the books any laws and treaties that make it more expensive. Nature has made it costly enough.
Generally speaking though, I think these rules will be overturned pretty much as soon as someone actually sets up habitation on the moon.
(Oh, and on the question of defacing the moon; in Heinlein’s novel The Man Who Sold the Moon, the protagonist sold advertising space on the moon; not to people who would actually use it, but to people who wanted to prevent someone else from using it. He threatened a general with a hammer and sickle, and soda concern with their rival’s logo.)
the FAA is abrogating to itself the ability allow or deny this sort of thing.
No, as I explained, it is operating under the auspices of the Commercial Space Launch Act and its obligations under the Outer Space Treaty.
I agree that the treaty will become meaningless once there are large numbers of entities operating off planet, but it’s silly to criticize the FAA over this.
When the Moon Treaty was being negotiated, there was still an active possibility of the Soviets getting there first, which may explain some of the compromises we don’t like today. For the US, it was a hedge against the possibility of Apollo failing, unthinkable as that is now. The Apollo 1 fire in January 1967 could have shut the program down for much longer than it did.
When the Moon Treaty was being negotiated…
We’re talking about the Outer Space Treaty, not the Moon Treaty. We are not a signatory to the latter.
Thanks, Rand, I stand corrected. My point was the outlook in the mid-Sixties is nothing like today’s.
I give props to any commercial space post that does not refer to Bob Bigelow as “space hotel magnate Bigelow”.
I stand corrected, sir.