Whose Moon Is It Anyway?

Whose Moon Is It Anyway?

Managing the commons is fraught enough here on Earth, but decisions will be all the more complicated when dealing with the great commons of the sky.

“I’ll give you the moon,” George Bailey tells his sweetheart in It’s a Wonderful Life. The romance of the promise comes from its very impossibility—we may gaze at the moon, write nursery rhymes about it, feel superstitious about its phases, but we cannot own it, whether to keep or give away. But it seems that the development of property rights on the moon—and in outer space in general—is on the horizon.

At the end of last year Bigelow Aerospace, a space technology company into which founder and real estate developer Robert Bigelow has already poured $250 million, filed a request with the Federal Aviation Administration’s Office of Commercial Space Transportation asking that the agency grant a “zone of non-interference” around their future lunar operations. Bigelow manufactures inflatable habitats for use in outer space (soft-sided structures designed to take up precious little volume on a rocket and then expand) and plans to establish a base on the moon. This request could be the first step toward establishing property rights on the moon.

The technology around commercial space ventures has so far outpaced the development of a legal framework, but the law will eventually catch up. Managing the commons is fraught enough here on Earth—whether it is territorial disputes over fishing rights in the South China Sea or fights over funding New York City parks. Decisions will be all the more complicated when dealing with the great commons in the sky.

The basis of international law governing space is the 1967 Outer Space Treaty, established out of Cold War fears that the United States or the Soviet Union would launch nuclear weapons from space. The Outer Space Treaty prohibits the use of nuclear weapons in space (though not conventional weaponization) and prohibits national appropriation of the moon or other celestial bodies. The Outer Space Treaty has been signed by over one hundred nations, including the “Big Three” (China, the United States, and Russia) and is considered binding international law. But the Outer Space Treaty says nothing of private enterprises, making its guidance blurry at best as commercial space businesses continue to develop. One can hardly blame the authors of the treaty for the oversight. Asteroid mining and space tourism sound outrageous today; they must have been even harder to conceive of fifty years ago.

The 1979 Moon Treaty went further, banning ownership of the moon—its surface, its subsurface, and any resources found within it—by any person, organization, or government. The treaty also declared its signatories’ intention to establish an international regime “to govern the exploitation of the natural resources of the moon.” A similar regime exists to govern the use of resources in international waters, established by the UN Law of the Sea Convention. But the moon regime was never established: only eleven countries have signed the Moon Treaty, and none of the world’s spacefaring nations are among them.

Bigelow isn’t asking for ownership of the moon. The company, founded in 1998, has the goal of establishing a base on the moon and leasing the space to customers. Though a lunar base would be years away, Bigelow already has two prototype habitats in orbit, and has entered into a $17 million contract with NASA to provide an expandable module to the International Space Station. (Current pricing on the Bigelow website offers two months of exclusive use of the Bigelow Alpha Station for $25 million.) According to Bigelow attorney Mike Gold, “We are asking the FAA for approval to launch and land a habitat on the lunar surface, and for reassurance that if we do so we will operate within a zone of non-interference. This is in keeping with the demands of the Outer Space Treaty—nations oversee commerce.” Rather than ownership, Bigelow wants assurance that its operations won’t be interrupted. One way or another, the FAA’s response to Bigelow’s request will help clear up the existing legal haze. “Our request is a catalyst for change,” Gold says.

From Bigelow’s perspective—an outlook shared by many in the growing commercial space industry—establishing property rights in space is not a novelty but a necessity. “Property rights are key to gaining the investment necessary to move forward,” says Gold. “We ignore the moon at our own peril—it’s not a question of if lunar resources are going to be developed, it’s a question of when and by whom.” While it’s hard to imagine the surface of the moon becoming so crowded with prospectors that there could be conflict over territory, Gold points out that “the real estate that is conducive to human life and human operations is not necessarily that large.” Ultimately, he asserts, “If the U.S. does not take action to at least establish some rules of the road relative to lunar activities, it is a recipe for conflict and disaster.”

When I look past a skyline of billboards and logoed skyscrapers, I want to see something that remains outside the sphere of human ownership, a symbol not of human power but of human smallness.

Gold is fond of comparing the current state of human space activity to the settling of the American West: first comes government exploration (NASA, Lewis and Clarke), but the most important work is done by the next wave of arrivals, the private individuals and enterprises seeking their fortunes. (It’s an interesting group for Gold to lionize, since he grew up on a Native American reservation in Montana. When I asked him about this part of the parallel, he answered simply, “Well, there are no Indians on the moon. The moon is truly unpopulated.”) “The government did have a very important role in blazing the trail,” he says, “but the most important part were the farmers, the homesteaders, the entrepreneurs who actually settled the region, and we have not seen that happen in space.” For Gold, today’s outer-space answer to those homesteaders are the companies, including Bigelow, that aim to set up business operations there.

There are many ways that the homesteaders who packed up their wagons and headed for the Great Plains are different from space entrepreneurs. For one thing, they had the Homestead Act, which made it possible for a farmer to apply for a land grant for any parcel of land where they worked and resided. Is this the type of regime Bigelow envisions in space? “In the ideal sense, absolutely. The Homesteading Act that resulted in the settlement and development of the American West is a terrific model,” says Gold. “The problem would be implementing it—the Outer Space Treaty prohibits national appropriation, and that’s where you would run into trouble with Homestead Act style activity.” Because the United States doesn’t own celestial bodies, it can’t grant ownership of them to other entities.

Attorney Michael Listner, founder of the consulting firm Space Law and Policy Solutions, has heard enough of these Wild West analogies being used to describe the future of commercial space. In late 2013, responding to Bigelow’s announcement of its FAA request, Listner wrote that “Outer space is anything but the Wild West…. [O]uter space property rights advocates who make this analogy disregard the present political and legal environment. The geo-political environment is different than it was in the nineteenth century.” Listner found the timing of Bigelow’s request “perplexing.” “The current legal and policy environment is not ready for a regime that would unilaterally grant private property rights in outer space,” he wrote in an article in Space News, warning that if the United States attempted to do so unilaterally it could provoke “geopolitical backlash.”

The Homestead Acts were about consolidating American power in the territories, but they were also consciously democratic, stemming from the “yeoman farmer” ideal: the only requirements for receiving a land grant in the Wild West were being at least twenty-one years old, never having taken up arms against the government, and residing on the land for five years. To get to the moon, by contrast, one needs quite a lot of money, and a spaceship.

Today there are many companies that have both. Bigelow’s request is part of a larger trend: in the last few years many commercial space companies have been established. Planetary Resources and Deep Space Industries intend to mine rare earth minerals and ice asteroids. Virgin Galactic and Space Adventures offer outer-space tourism. All of these companies were established between 2004 and 2013. The new private space sector has drawn the attention and capital of many celebrity investors, including Richard Branson, Eric Schmidt, Ross Perot Jr., and James Cameron.

So far the development of technology—and businesses based on those technologies—have developed much faster than the legal frameworks around them. But just as laws around privacy and intellectual property evolved in response to the internet, new laws about space are on their way. This July representatives Bill Posey (R-FL) and Derek Kilmer (D-WA) introduced the American Space Technology for Exploring Resource Opportunities In Deep Space (ASTEROIDS) Act, or H.R. 5063. The bill would make resources mined from asteroids the property of the company undertaking the mining. The legislation would grant mineral rights—the right to extract and exploit any resources found in the asteroid—rather than the right to own the asteroid itself.

Listner calls the ASTEROID bill a good first step but says that the timing is not quite right. “I don’t think the international legal and political community is really ready to come to an agreement about ‘property rights.’” Because of this, he doubts that the legislations will make it out of committee. In addition to problematic timing, Listner says the bill is not as clear as a space-property law would need to be. “I say ‘property rights’ in quotes,” he added, “because nobody knows what those are going to be,” he says, noting that while it tells Congress to find a way to create property rights, it “doesn’t say how.”

Roman legal tradition established two broad conceptions of un-owned resources: res nullius, or “nobody’s property,” and res communis, or “communal property.” The former applies to things like wild game animals, or the gold of the Wild West—whoever could find and access it would own it. Asteroids would seem to belong in this category; some contain platinum and valuable minerals, but with over 500,000 known asteroids in our solar system, they are essentially space rubble. If you want to lay claim to a chunk of icy rock hurtling through space, go for it.

The moon, however, seems more properly to be res communis, or “common to all mankind.” Like the idea of a privately owned ocean, the idea of anyone owning the moon rankles. I might want scientists to study the moon and seek human understanding of it, or to send occasional emissaries to conduct experiments or to bring home otherworldly moon rocks. But when I look past a skyline of billboards and logoed skyscrapers, I want to see something that remains outside the sphere of human ownership, a symbol not of human power but of human smallness—something to give us a little perspective about our place in the world. The resources I want to mine from the moon, in other words, are transcendence and humility.

Such sentimental Luddism rarely wins in the end. So, barring the establishment of an extraterrestrial version of the National Parks System, perhaps the most compelling vision for governing the space commons is that of Michael Simpson, executive director of the Secure World Foundation, an organization dedicated to the sustainable use of space resources. Like Gold and other advocates of space property rights, Simpson calls on an example from America’s past as an ideal. But it’s not the Wild West; it’s Boston Common. “The model is quite intriguing,” he says of the United States’ oldest park, which in the early 1600s was a grazing ground shared by many local farmers. In between, the uses of the space have changed with the city: it has been used as military camping grounds, the site of state hangings, and for public rallies and protests. For seventeenth-century Bostonians, says Simpson, “this was land that was not owned by any of the users, but it was managed to make it sustainable, available for grazing next year just as it is this year. People were expected to use it, to mark their animals to avoid conflict.” Despite having no private ownership of the Common, citizens could still use it and derive income from it.

Simpson believes there’s good reason to use a similar approach on the moon—allowing for communal, sustainable use of resources, even mineral rights for those resources that can be extracted, but not ownership. “On the moon, you have a whole host of resources of extraordinary value, that could have both marketplace value and social value,” he says. Resources from space have worth beyond their commercial value. On the lunar surface, there’s helium-3, an isotope than many believe could be a revolutionary fuel source; the far side of the moon, facing away from Earth, is the most radio-quiet place in the inner solar system, making it a gold mine for astronomers. “It’s going to be very similar to the National Parks argument. There are those who think these places have such abundant social and aesthetic value, and those who say no, we have to get the economic value out of it.” He appreciates that the ASTEROID bill gives mineral rights only, recognizing that Congress is not empowered to grant title to asteroids. He even thinks it might be possible, if the bill were to become law, for U.S. companies to use the materials they mine from asteroids in the absence of a new international treaty without causing a geopolitical incident. This could be achieved either by selling mined materials only within the U.S. economy, or by establishing individual agreements with other countries enabling the sale of extraterrestrial resources. But in Bigelow’s case, Simpson sees greater potential for problems rooted in the Outer Space Treaty, which dictates that any base established by a country must be accessible to people from other countries.

Ultimately, Simpson says, figuring out how to peacefully share space in the absence of a sovereign power will be a complicated undertaking. We can call on the Wild West or Boston Common all we want, but as Simpson points out, the fact is that “in recorded history, we have never developed a system of governance, whether formal or informal, in the absence of sovereignty.” Much less in the absence of gravity.

Rachel Riederer is an editor at Guernica.