OwenRichard Garriott ponders his:
I have noted the interesting point that I am now the only private individual with a flag or stake on the soil of the moon, and thus at the least I might be able to make some claim to the land beneath it, if not even more territory.
Surely my claim would be far better than the people who are currently selling lunar plots that they have identified only via telescope photographs. Those people have no physical basis of their claim. I at least have a marker on the soil which really belongs to me.
People have countered with the fact that there are international treaties that state “No country will make territorial claims off of the earth. This was agreed to after the USA and USSR had a brief race of sending impacting probes to the moon which scattered flags,and almost began a territorial race on the moon.
But I counter with the fact, that I am not a country! Also there is international convention, that if I were to go to an unclaimed pacific island (of which there are still many) and plant a flag on the beach, international convention is that any part of that new land which I use, is mine. Not the whole island but any part I use.
I could argue that my lunar rover has a lander at one end of its 40 kilometer track and has surveyed the land with probes and cameras along the track, and the lander is at the other end, thus I have used, surveyed and modified the moon in this area. Also my lander is still in active use, it has special mirrors which are actively used to measure earth moon distance to this day.
Some have countered that when I bought the rover, the seller could not make claim to the land as they were bound by the treaty and thus could not sell the land to me.
I can counter that even if that is so, my lander is still mine. It is still in use. and thus I can still make active claim on my own without any need of the transfer of such rights!
This could be an interesting test case. Is sovereignty required to have individual property rights? It certainly seems like it would be to enforce them.
One thing that doesn’t seem likely to occur under this administration is to renegotiate the Outer Space Treaty. But that might be an interesting outcome of the political pendulum swinging back in the future.
I believe Taylor Dinerman is accurate, here, with respect to what will happen (as opposed to what should happen):
http://www.thespacereview.com/article/1590/1#idc-container
And this offers incentive to get to the Moon sooner rather than later.
PS — I am also fearful that any attempt to renegotiate the Outer Space Treaty of 1967 will make things worse rather than better as I lack confidence in the ability of both the US State Department and the US Senate to get this topic right. Whether Democratic or Republican.
Anyway, these issues are at the heart of my new novel and are truly fascinating issues of political philosophy.
Owen Garriott ponders his:
I thought it was Richard Garriott that bought the rover.
This could be an interesting test case.
Before what court? Any nation that claimed jurisdiction would be claiming sovereignty over the moon.
Is sovereignty required to have individual property rights?
Individual property rights aren’t the issue here. No one (I think) disputes Garriott’s ownership of the rover. The issue in this case is land ownership.
Garriott’s argument is akin to claiming that since one’s ship has surveyed a stretch of the ocean then that stretch becomes one’s property and that international law is not violated because one is not a country.
One thing that doesn’t seem likely to occur under this administration is to renegotiate the Outer Space Treaty.
I really think this is the only way to go if land ownership in space is desired. Land ownership just can’t be reconciled with the OST.
I thought it was Richard Garriott that bought the rover.
D’oh! Fixed, thanks.
The issue in this case is land ownership.
I understand that.
Garriott’s argument is akin to claiming that since one’s ship has surveyed a stretch of the ocean then that stretch becomes one’s property and that international law is not violated because one is not a country.
I disagree. Land is not sea, either physically, or legally. And maritime law doesn’t extend to space. Traveling through space would be more akin to surveying a stretch of ocean. And I would argue that he has “improved” the land in some sense, so the Mining Act would be a more useful precedent.
This is where negative and positive rights theory comes in. This is an important field for libertarianism. Every libertarian should make a note.
Negative rights are self evident rights which an individual can enforce himself. These include speech, assembly, self defense and property. No court is actually necessary to enforce a negative right. You can exercise a negative right all on your own. A state actor can impugn a negative right usually through the courts and ultimately violence. But state actors and courts are not required to enjoy a negative right itself. According to negative rights theory, Garriot owns the land he claims so long as he can personally enforce his claim against interlopers. No sovereign nation or courts are necessary
This is in contra-distinction to a positive right like, universal healthcare. A positive right requires the full force and violence of the state to enforce.
Why not just repudiate the Outer Space Treaty entirely?
Either openly or by simply ignoring it?
It has no punitive provisions, as far as I know, nobody acts constrained by it… it is in all practical terms a dead letter already, perhaps apart from the liability provisions (which equally wouldn’t need a treaty, if they were simply treated as customary… they’re already unenforceable if the at-fault nation declines to pay).
Why not just repudiate the Outer Space Treaty entirely?
And you imagine that this White House and State Department are going to do that?
@ Jim Davis
Land ownership just can’t be reconciled with the OST.
I agree, unless lunar settlers asserted the creation of a new sovereign.
However, for practical purposes, the non-interference language in the OST assures that lunar water miners or PGM prospectors can operate without interference provided they continue to actively work a claim.
Withdraw your equipment from a given crater and someone else can move in but they cannot displace your equipment. Under current law.
Who will own the Moon? Whoever gets there “first-est with the most-est” together with a secure logistical pipeline to Terran sponsors.
Is a logistical pipeline to Terra really necessary in a legal sense? Why couldn’t ISRU settlers completely cut off from Earth own it? It wouldn’t be the easiest way to do things, but I don’t see why trade with Earth has to be a necessary condition for lunar ownership.
Why not just repudiate the Outer Space Treaty entirely?
Unnecessary. The OST has provisions for withdraw. I think a year notice is required. The Bush administration used a similar provision to withdraw from the ABM treaty.
Even if he did, it would be no different than the Homesteaders in the US. “go forth and tame this land” then later “thanks for all your work now we’re taking it and giving it to this guy that donated to my campaign”
I strongly endorse the general idea that we need property rights on the moon, especially for the lunar ice. But there are at least a couple flaws in Garriot’s account:
* He was acting for his employer, the U.S. government, at the time, so any property claim would be his employer’s, not his. Similarly, neither of the Garriots own the rover unless NASA sold or gifted it to them.
* The key Lockean moral fact that leads to ownership of a space is not human presence but humans making an ongoing use of the space. Thus, for example, we effectively have a property rights regime for GEO slots despite the fact that the owners were only ever present in the form of their machines, never in their persons.
The strongest case for property rights in the artifacts on the moon under current law are the reflectors that people still bounce lasers off of. Property claims could include not only the reflectors themselves but the space they occupy and the sky view rights. (View rights will often be very important in space). The other landers, rovers, golf clubs, etc. have been abandoned because they are no longer made use of so they are probably subject to ocean salvage law and any real property claims their owners may have had at the time have been abandoned.
He was acting for his employer, the U.S. government, at the time, so any property claim would be his employer’s, not his.
When did Richard Garriott work for the U.S. government?
Similarly, neither of the Garriots own the rover unless NASA sold or gifted it to them.
What does NASA have to do with it? Richard bought it from the Russians.
I don’t think you understand what’s going on here.
How has this thread gone this long without a Lord British (in SPAAAACE!) reference?
Land is not sea, either physically, or legally. And maritime law doesn’t extend to space.
Physically, certainly. Legally, the similarity is clear. The moon and the seas are both places where claims of sovereignty are forbidden by treaty.
You might prefer that only space (and not the bodies therein) be analogous to the seas but the treaty explicitly makes no such distinction.
The problem is that we are talking mostly hypothetical here. My guess is (IANAL) that Garriot might win in court at this moment, but once that ruling starts to have real world consequences (as in someone really lands near the rover and wants to use the land), said ruling will become either “re-interrupted” or ignored completely. This is particularly true if the people who want to use the land happen to be a government with an army.
BTW, this has got to be the most Heinlein like discussion I have ever seen on this site. 🙂
BTW, this has got to be the most Heinlein like discussion I have ever seen on this site.
You must be new around here…
Rand, thanks for the correction. I was misled by the mention of Owen. My basic points still stand. I am glad Richard Garriot has raised the issue of lunar property rights in this way, but I’m afraid that “I am now the only private individual with a flag or stake on the soil of the moon, and thus at the least I might be able to make some claim to the land beneath it” is quite a moral and legal stretch. Even assuming that the rover is ligan rather than jetsam (abandoned), the mere fact that he has unused personal property in a tract of unclaimed land does not give him real property rights to any of that land. It does not constitute an ongoing Lockean use or similar legal requirements needed to legally acquire land by prescription. The laser reflectors, OTOH, do constitute ongoing use of the land. Their owners have a much stronger claim to the land (and view rights) required to operate and use these reflectors than Garriot with the rover. If an individual wants to make the strongest claim for lunar real property he or she should purchase one of these refectors.
My point about the equivalence of in-person use vs. machine use claims works Richard’s favor here as well as in favor of the laser reflector owners.
My guess is (IANAL) that Garriot might win in court at this moment…
What court would that be? What court could claim jurisdiction in the matter? Any nation who claimed its courts had jurisdiction would be claiming sovereignty over the moon.
googaw,
You make a good argument about use versus non-use. As to buying the reflectors, I think the issue there is that whoever is selling the reflector to you would be doing so with the knowledge that there wasn’t much you could do with the land it occupies. I don’t think the Russians really thought they were selling Garriot anything beyond the right to call the rover his. I doubt they thought they were selling him the land underneath.
Jim Davis,
Good point.
Because of the legal use of precedent it may be dangerous to set them when judges may not have a clear view of our destiny. I think it’s best to simply claim property physically and let the courts try to take it away. I would hope enough people claim enough property that they can’t just wave it away as a single crank action.
Garriott has no claim to Lunar territory, because under the OST nobody can claim terrority. But we don’t need to set up private property rights on the Moon to exploit it.
The OST gives any nation the right to set up a “scientific and research” base on any celestrial body. Once private concerns can actually get to a celestrial body, they will simply find a friendly government to license their operation as a research base. It’s similar to the concept of “flag of convenience” seen in maritime law, although here land-locked countries get to play as well.
There is no incentive for any Great Power (or even regional power) to scrap this system, at least in the near term. They can license / establish whatever bases they want, secure (for some value of “secure”) that other nations won’t take it. Ambitious individuals desireous of using their bases for activities their governments might not approve of (or just looking for a cheaper deal) will find some other country willing to cut a license for the right price and terms.
Chris, the usual way a prescriptive right works in this context is that there has been (at least) a continuous use of the real property for N years by the claimant at the time of the claim.
Thus, since Richard hasn’t been using the rover he is out of luck. (He might try selling postcards with the rover’s picture on it, but I don’t know whether this does or should constitute “continuous use” for the purpose of homesteading real property). But if the laser reflector has been in regular use for at least N years before the claim is made then they pass this test. Since there is no precedent for laser reflectors on the moon, the court will have to decide what N is based on analogous cases here on earth.
Of course, as Jim points out this assumes one can find a court that will hear the claim. A U.S. federal court might hear it, even though it isn’t a sovereign issue, because they have jurisdiction over interpreting treaties and international law if there is no established international or foreign court with better jurisdiction. However, a better approach might be to go to an international body, perhaps the WTO. Another problem is that courts don’t like to give mere advisory opinions. It works much better if there is an actual dispute, which would be hard to concoct without somebody else actually having a competing and imminent or actual use for the land. One can probably find a court in some country somewhere (probably not the U.S.) that is willing to give an advisory opinion, but its precedential weight may be rather low (i.e. other courts may later easily choose not to follow its holding).
Here’s a possible dispute, only slightly concocted: a Google Lunar X-Prize robot drives to stand right next to the laser reflector (or rover) to take a close-up shot, perhaps even bumping in to the object. The putative owner can then sue for trespass and the court would have to decide as part of that case whether the plaintiff is the actual owner of the land.
googaw,
Interesting example. If the rover didn’t bump into the reflector (or somehow block it from receiving the beam), wouldn’t the court be a little skittish about even taking the case if no harm was done?
BTW, I don’t necessarily encourage activities to try to clarify the law long before there are actual competing high-value operations on the moon. Courts or treaty bodies trying to speculate about future uses might get the property rights wrong. Laser reflectors or rovers used to sell postcards may be unusual uses that set precedents that might be inappropriate, for, say, mining (although it might set better precedents for, say, solar power view rights). But without actual mining operations (or at least real commercial designs for same that have been heavily invested in), courts or treaty bodies may poorly anticipate the kinds of rights that are needed. Or it may turn out that property rights are needed for activities more valuable than mining and thus focusing on mining rights are a bad idea. We don’t know yet. Also, the OST is a poor background against which to try to set property rights precedents — energy may be better spent getting a better treaty than pursuing lawsuits.
OTOH there are some reasons to be proactive. Lunar ice may soon be an important issue and it may not be too long before serious money is invested towards mining it, and such investments would greatly benefit from a good property rights regime, as would the prospects for efficient use and conservation of the lunar ice. Certainly if I was serious about such an effort I would make efforts to clarify and if needed revise the law. Indeed that is how GEO slot law came about, it was created when needed by the lobbying of the early comsat operators.
The putative owner can then sue for trespass and the court would have to decide as part of that case whether the plaintiff is the actual owner of the land.
This is the kind of legal logical knots that lunar ownership advocates tie themselves up in.
One can’t “sue for trespass”. Trespass implies a violation of law. But what law? There is no law concerning trespass on the moon. Why is there no law? Because there is no legislature with the authority to pass laws concerning trespass on the moon. Why is this so? Because making law is an exercise of sovereignty and no nation claims to be or recognizes any sovereign authority on the moon. And because there is no law against trespass there is no court empowered to hear suits alleging it.
And any court that “decides as part of that case whether the plaintiff is the actual owner of the land” is claiming that it has the authority to determine ownership of the moon which is a sovereign prerogative and is hence claiming its nation’s sovereignty over the moon. But that nation (almost certainly a OST signatory) has agreed not to do so.
Lunar ownership advocates have to stop kidding themselves that lunar ownership can be squared with the OST. It just can’t be.
Chris, for trespass to land most courts will award nominal damages (e.g. $1) when no actual damage has been done. So just the act of crossing the boundary line serves the purpose of setting the precedent of determining whether actual real property rights were violated. Of course the teleoperator wants to know whether he has driven his robot across a boundary line that has not yet been set, and I don’t know how to do that without actually bumping into the reflector.
Morally or informally, the case might look better if there were actual damages. If some damage is needed, the robot might kick up some lunar dust that would land on the reflector and reduce its functioning. It would be a shame to have to actually lose a laser reflector, though.
BTW, the robot owner can’t get the permission or invitation of the the laser reflector owner, it actually has to be an adverse trespass, so it’s up to the robot owner to take the initiative to trespass.
The problem with that actual dispute is that the court’s could resolve it on the basis of the ownership of the laser reflector or rover without necessarily deciding the ownership of the surface.
I wrote:
The putative owner can then sue for trespass and the court would have to decide as part of that case whether the plaintiff is the actual owner of the land.
Jim replied:
This is the kind of legal logical knots that lunar ownership advocates tie themselves up in.
This knot is much simpler than what lawyers and judges deal with every day. And it’s practically standard. For over a thousand years ownership issues have been frequently resolved within trespass cases, and they still are, every day.
Trespass implies a violation of law. But what law?
Treaties are law. Cases interpreting those treaties and analogous treaties are law. Real property precedents are law, if the courts believe they apply. You can’t get away from the law. If we had robots dueling on Pluto there would still be libraries full of law that might be applicable to the case.
making law is an exercise of sovereignty
Nonsense. But even if you have this philosophy, treaties like OST have been signed by sovereigns and must be interpreted by courts when disputes arising under them arise. If they interpret the OST to not preclude private law (i.e. common law or civil law), then private law including real property law applies. If they interpret OST to not preclude the traditional law of the sea, then that law applies. Since the OST is vaguely worded it is open to all sorts of creative interpretation courts may wish to engage in.
That said, I tend to agree that renegotiating the OST to explicitly allow for property rights — preferably incorporating traditional real property and mining law of a major jurisdiction — would be a good idea. The big issue will probably be whether or when Continental (civil law) vs. Anglo (common law) legal precedents apply (those are the two main competing systems of private law). Probably the compromises between common and civil law reached in bodies like the WTO will also apply to the moon.
lunar ownership advocates
Are you advocating some system other than property law? If so, what is it?
Adam Greenwood:
The problem with that actual dispute is that the court’s could resolve it on the basis of the ownership of the laser reflector
This is an important issue but it can be overcome. The issue is if the driver bumps the robot into the reflector and causes damage, the case can be resolved as one of trespass to chattels, and the court then doesn’t need to decide the real property issue. However, if the robot crosses the real property boundary (which may require bumping into the reflector depending on where the court sets the boundary) but causes no damage, the case can only be resolved as a matter of trespass to real property. Which requires the real property issue to be resolved.
So, we need a carefully programmed robot that slightly bumps the reflector. Extending a robot arm or boom above the reflector (when it is not in operation reflecting a laser) probably will also work, since the space at least immediately above the reflector is within the boundary.
This “logical knot” of law sounds complex, but this is still pretty simple stuff as far as law goes. And this method of resolving ownership disputes through nominal trespass is standard operating procedure in common law countries (I don’t know about civil law).
I don’t think the Outer Space Treaty limits private ownership of anything. In fact, under its terms, no nation would have the right to exercise jurisdiction over someone asserting property rights in space (not over that individual in space, anyway). The point of that treaty was to keep countries from claiming planetary bodies, not to stop private ownership or any other activity (except nukes, I guess). Of course, enforcing property rights without a recognized sovereign would be challenging, but nothing prevents inhabitants of other worlds in the system from setting up their own laws and governments.
The Moon Treaty, on the other hand, does prohibit private ownership of anything in space. Fortunately, no country worth anything in space signed it.
In the last sentence, make it “ratified” rather than “signed.”
For people claiming that the law cannot apply on the moon… how far up does the law extend then, really ? How about geostationary slots ?
For over a thousand years ownership issues have been frequently resolved within trespass cases, and they still are, every day.
By sovereign authorities which do not happen to exist, by treaty, by law, on the moon and never have. There are no precedents to appeal to.
Treaties are law. Cases interpreting those treaties and analogous treaties are law. Real property precedents are law, if the courts believe they apply. You can’t get away from the law.
You simply can’t follow the implications of your own argument. Yes, treaties are law. The OST, a law, says that there will be no sovereign authority on the moon and elsewhere in space. Therefore there are no precedents in property law involving lunar land ownership than can be appealed to. Any appeal to precedent involving lunar land ownership is a claim that that nation’s laws have force on the moon, a claim of sovereignty. Any nation whose courts rule that their nation’s laws apply to the moon is claiming sovereignty over the moon and hence is violating the OST.
Example: Garriott sues a Google X-Prize rover owner for “trespass” in a US court. What “precedent” is the court going to refer to? A precedent in US law? The court would then be claiming that US laws apply to the moon, a claim of US sovereignty over the moon, a violation of the OST. Common law? Which common law? Anglo-Saxon common law? Setting aside the fact that the moon is not historically an Anglo-Saxon country, Anglo-Saxon common law has the force of law in the US and claiming that it has the force of law on the moon is a claim of sovereignty, a violation of the OST.
Are you advocating some system other than property law?
I’m not advocating anything. I’m pointing out that lunar land ownership is not consistent with the OST. I understand you don’t like it but it is, as you point out, the law.
I think enforcement of property rights might be harder if the OST holds–which is doubtful when we’re really in the business of colonizing the solar system–but nothing in it stops a private actor from owning property. If that hadn’t been the case, the Moon Treaty wouldn’t have included language expressly forbidding private ownership of property in space. Note, too, that property issues only become a problem when the resources become scarce. If a whole planet is wide open, it’ll be a long time before people have to deal with regular property disputes.
I’m rather dubious that we’ll follow the Antarctica model for space, once we get there. That’s the vision many have and was the foundation for the Moon Treaty, apparently. The reality is that if one country or allied countries (say the U.S. and the E.U.) were the only ones colonizing the Moon, they’re going to do as they like up there.
If lunar property can be claimed in such a fashion, I wonder what would happen if the US decided to transfer it’s lunar landers and rovers to a US-based NGO.
I’m rather dubious that we’ll follow the Antarctica model for space, once we get there. That’s the vision many have and was the foundation for the Moon Treaty, apparently.
Actually the Moon Treaty was modeled after the Law of the Sea Treaty.
That’s what I get for “supposing.” In any case, my preference is to get private actors into space in force first, then let the governments scramble over who controls what later.
Meh – If I establish some living quarters and an ice mine on the moon, who is going to stop me from claiming ownership?
No government body, or collection of governments, has the power to make and enforce any rules about moon property rights – they don’t control it.
Likewise with Antartica – if I go down there and set up a penguin farm is some government going to declare war on me or come over and burn down my buildings?
The question isn’t who is going to ‘let’ me, its who is going to stop me.
Jim, as I said before in the absence of a foreign court with better jurisdiction, U.S. federal courts have jurisdiction to hear cases involving U.S. citizens (including some disputes with foreign parties depending on details of the case) that arise under international law, and to thus interpret international law and write opinions that can serve as precedents for international law. Whether foreign or international courts want to follow these precedents is less clear-cut: they tend to do so when the opinions are good and decline to respect such authority when the opinions are bad. This is normal operation of international law and does not constitute an exercise of sovereignty forbidden by the OST, any more than the many Law of the Sea related cases decided by U.S. courts constitute an improper exercise of jurisdiction. (A treaty would be odd indeed if it refused to allow courts to treat it as law!)
As for whether property rights can exist under the OST, of course they can: GEO slots are a great example. Whether they can exist on the moon and if so take the form of real property law, and if so which precedents (especially civil vs. common law) govern, and many related important matters are open questions for a court to decide. We won’t know until we have a dispute and a respected court, national or otherwise, must figure out what the law is.
That said, I agree that it may be preferable to seek a treaty that explicitly recognizes property rights and perhaps resolves some general issues about which tradition of property laws should apply. I am quite against trying to define such a law in detail, however — there’s nothing actually very alien about lunar land issues and we should allow the law to evolve and adapt naturally (that is, through the process of precedent) from its current state rather than trying to reinvent it from scratch in anticipation of a future that we largely can’t predict.
The OST was utopian garbage made to keep the communists happy. Fortunately it was vaguely worded garbage, so that courts have an opportunity to interpret it as incorporating real law. The last thing we need is for spacy utopianism to mutate into trying to centrally plan the future in such detail that we get a treaty that destroys any chance of applying standard common or civil law. That would be a recipe for disaster.
Ryan is the only one who has it right. Possession is nine tenths of the law. Court decisions on earth are meaningless without the means to enforce them.
The OST was utopian garbage made to keep the communists happy.
If so, it made the communists at the State Department happy as well (Joe McCarthy was right!). Actually, the motivation was to avoid a truly expensive space race with everyone staking claims. This in the context of Apollo-era technology, of course.
Ryan is the only one who has it right.
Ryan would probably be a citizen of some country. Hes responsible to his country of citizenship, and his penguin farm in antarctic or his ice farm on moon would be the responsibility of his government.
Ryan would probably be a citizen of some country. Hes responsible to his country of citizenship, and his penguin farm in antarctic or his ice farm on moon would be the responsibility of his government.
Nope, that’s not how it works.
Jim, as I said before in the absence of a foreign court with better jurisdiction, U.S. federal courts have jurisdiction to hear cases involving U.S. citizens (including some disputes with foreign parties depending on details of the case) that arise under international law, and to thus interpret international law and write opinions that can serve as precedents for international law. Whether foreign or international courts want to follow these precedents is less clear-cut: they tend to do so when the opinions are good and decline to respect such authority when the opinions are bad. This is normal operation of international law and does not constitute an exercise of sovereignty forbidden by the OST, any more than the many Law of the Sea related cases decided by U.S. courts constitute an improper exercise of jurisdiction. (A treaty would be odd indeed if it refused to allow courts to treat it as law!)
This is all true but not relevant to the issue at hand which is lunar land ownership. No one disputes that there is law in space and terrestrial courts have jurisdiction in such matters. For example, if one shuttle astronaut kills another in space then according to the OST US courts have jurisdiction since it was on a US owned spacecraft. ISS is more complicated but there is law there as well with courts with jurisdiction.
But no court has jurisdiction in a case involving lunar land ownership because the parties to the OST have agreed that their courts have none. A claim of jurisdiction is a claim of sovereignty. A US court can no more decide who owns a tract on the moon than it can decide who owns a tract of the Indian Ocean. A claim of jurisdiction in such a case is a claim of sovereignty. The OST and the LOST forbid such claims of sovereignty.
If you can’t see this then ask yourself what your reaction would be if a Russian court found that the US government’s rovers Spirit and Opportunity trespassed on the property of one Ivan Ivanov, a Russian citizen and the owner of the planet Mars. Or a British court ruled that the Atlantic Ocean belonged to British Petroleum.
As for whether property rights can exist under the OST, of course they can: GEO slots are a great example. Whether they can exist on the moon and if so take the form of real property law, and if so which precedents (especially civil vs. common law) govern, and many related important matters are open questions for a court to decide. We won’t know until we have a dispute and a respected court, national or otherwise, must figure out what the law is.
The issue is not property rights on the moon it is specifically land ownership. No one argues that the Russians owned the rover and had every right to sell it to Garriott. Such questions of private property do not involve issues of sovereignty. Lunar land ownership does involve such issues which is why it is not compatible with the OST. Confusing lunar land ownership with the larger issue of private property shows how confused advocates of lunar land ownership are.
That said, I agree that it may be preferable to seek a treaty that explicitly recognizes property rights and perhaps resolves some general issues about which tradition of property laws should apply.
There is no need of that at the moment. No one disputes that the Apollo and Luna samples are the respective properties of the US and Russian governments who are free to dispose of such as they wish. Private property is not an issue with the OST; land ownership is.
I am quite against trying to define such a law in detail, however — there’s nothing actually very alien about lunar land issues
Lunar land ownership in the absence of a sovereign authority is very alien indeed.
and we should allow the law to evolve and adapt naturally (that is, through the process of precedent) from its current state rather than trying to reinvent it from scratch in anticipation of a future that we largely can’t predict.
My own feelings are that these issues are best dealt with by the people with the most at stake – lunar settlers. Terrestrial governments trying to make law for conditions so far in the future that the issues can only be vaguely known would be like the governments of 1900 trying to write law governing the internet.
The OST was utopian garbage made to keep the communists happy.
No, this is nonsense. The OST, among other things, was designed to prevent conflict over outer space whose value was (and is) largely unknown and which conflict nobody wanted. This it has done (and still does) quite well. The notion that it has held up space development is nonsense.
Fortunately it was vaguely worded garbage, so that courts have an opportunity to interpret it as incorporating real law.
There is not a state department or foreign ministry in the entire world who would agree with you.
The last thing we need is for spacy utopianism to mutate into trying to centrally plan the future in such detail that we get a treaty that destroys any chance of applying standard common or civil law. That would be a recipe for disaster.
I think “spacy utopianism” is found more among OST critics than the OST drafters themselves. The OST is a very pragmatic treaty.
1. This won’t make a good test case unless someone else tries to do something with Richard’s land, and he goes to court and tries to stop them.
2. Property rights that have murky title are about the same as no property rights. Just head to the Moon and do what you want. Who’s to stop you?
3. Property rights are an opportunity that require legal recognition and consensus. If there is good title, property rights can be traded.
4. Providing title insurance to Richard’s title ought to be pretty cheap. Who will object? But this begs the question: if clear financial title can be claimed cheaply via title insurance, the value of clear title is less than the cost of the insurance.
5. There is still an opportunity. If there were clear title to the entire Moon then that could function as a de jure industrial policy so potential transporters could buy up cheap land before investing in transport technology that could not be sufficiently protected via intellectual property. Any technology that makes settlement more likely could similarly increase the value of land holdings. Particular technologies, like batteries using lunar materials, could increase the value of certain areas of real estate (like away from the poles). Similarly a lunar space elevator to a spot on the equator.
Bottom line: good luck Richard! The best things in life that people invest in are privately held.
But no court has jurisdiction in a case involving lunar land ownership because the parties to the OST have agreed that their courts have none.
Not so. Standard jurisdictional rules for international law apply, as I have described.
If you can’t see this then ask yourself what your reaction would be if a Russian court found that the US government’s rovers Spirit and Opportunity trespassed on the property of one Ivan Ivanov, a Russian citizen and the owner of the planet Mars.
Easy. (1) other countries’ courts wouldn’t respect such a silly precedent, and (2) it would motivate renegotiation of the treaty to clarify lunar property law. Precedent in international law depends far more on reputation and far less on compulsion. Since real property and mining law on the moon makes eminent sense, and no other system does, there would be widespread respect for such precedents by other courts. The main dispute will be over civil vs. common law where these disagree.
Lunar land ownership in the absence of a sovereign authority is very alien indeed.
No more so than GEO slot ownership which works fine.
lunar settlers
The main lunar settlers for the foreseeable future will be robots, and robots are not legal persons. Their earthside owners are. The less important astronauts on the moon will, like workers on oil rigs, be employees not owners for the foreseeable future.
whose value was (and is) largely unknown
The value of GEO is well known and the value of lunar ice soon will be.
Hi All,
If Richard Garriott actually landed the vehicles on the Moon his statement would make sense. But its well established in law you may only sell the property rights you actually have. The Russians did not have real property rights on the Moon to sell Richard Garriott with the rover.lander, only the personal property rights to the rover/lander. So that is all he owns. Period. No court would waste a second on his claim to own the land between them.
Treaty of Tordesillas
http://en.wikipedia.org/wiki/Treaty_of_Tordesillas
By purporting to divide ownership of the New World between Portugal and Spain, the Vatican also undermined its own legitimacy and created enemies elsewhere in Europe (England, France & Holland for example).