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.
Standard jurisdictional rules for international law apply, as I have described.
“Standard jurisdictional rules” include the OST which forbids claims of sovereignty. The OST restricts the jurisdiction of the signatories’ courts.
Easy. (1) other countries’ courts wouldn’t respect such a silly precedent,
Worse, other countries would condemn such an act as a violation of the OST.
and (2) it would motivate renegotiation of the treaty to clarify lunar property law.
In other words, the very situation that the OST was designed to prevent would arise – conflict over extraterrestrial territory.
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.
The signatories of the OST have agreed not to make claims of sovereignty on the moon. No appeals to “precedent” can alter that. If the courts of any signatory assert such claims that nation will be in violation of the OST.
You might as well claim that “real property and mining law” on the high seas “makes eminent sense” and “no other system does” so “precedents” set by US courts over who owns stretches of the high seas will be respected by other nations’ courts because “precedent in international law depends far more on reputation and far less on compulsion”.
I think like many space advocates you have a blind spot where space is concerned because of the emotional investment in the subject. Absurdities which you would instantly recognize in one context (the high seas) you champion in another (space). You can grasp the notion that US courts making rulings on who owns stretches of the seas would quickly bring the US into conflict with the other nations of the world; with the moon you fantasize that such rulings will be respected as “precedents”.
No more so than GEO slot ownership which works fine.
There are no sovereignty implications with GEO slot allocations anymore than there are with frequency allocations. GEO slots are not “owned” anymore than the stretch of sea occupied by an oil rig is “owned”.
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.
And just like oil rigs there will be no need for issues of sovereignty to raise their heads.
So the OST is secure for a long time to come.
The value of GEO is well known
No sovereignty implications.
and the value of lunar ice soon will be.
Really? You know that for a fact?
Jim,
There is nothing magical about the OST. Countries can back out of it, and will, the moment there is a significant gain to be had by doing so. The treaty was written at a time when the actual exploitation of “the Moon and other celestial bodies bodies” was (and for the moment still is) a hypothetical. When it becomes more than that, the OST will be history.
The OST restricts the jurisdiction of the signatories’ courts.
We’re going around in circles. You don’t understand how international law works. National courts have jurisdiction over disputes arising under international law and OST has no language to the contrary.
In other words, the very situation that the OST was designed to prevent would arise – conflict over extraterrestrial territory.
OST may be designed to prevent it, but it won’t in fact prevent it. Like I said, it’s utopian garbage.
There is nothing magical about the OST.
I’m not claiming that there is anything magical about. I’m merely pointing out that lunar land ownership is inconsistent with it.
Countries can back out of it, and will, the moment there is a significant gain to be had by doing so.
No doubt.
We’re going around in circles. You don’t understand how international law works. National courts have jurisdiction over disputes arising under international law and OST has no language to the contrary.
Let’s see if I follow you here:
You claim that national courts can claim sovereignty over the moon and that such claims do not in fact violate the OST.
I submit that you have a very hard time finding a state department or foreign ministry that would back your position in this matter.
Private property is not an issue with the OST; land ownership is.
At what size does a private property rock become real estate?
Law is a proxy for force. If you claim something as your property and nobody disputes it, it’s yours.
At what size does a private property rock become real estate?
An excellent question. I suspect the answer would be related to the answers to questions like “Can you put in your pocket?”, “Can you load it on a truck?”, or “Can you load it on a ship?” but who knows? There is no doubt that there is certainly a legal distinction between ordinary private property and real estate. You can extract fish, magnesium, fresh water, etc from seawater and they become your property but the seas are not real estate.
Law is a proxy for force. If you claim something as your property and nobody disputes it, it’s yours.
Unfortunately, in the real world disputes happen. A nation claiming sovereignty over the moon was certain to cause disputes so the OST was designed to prevent that.
So far, so good.
Well, so far, it worked. I’m not sure I’d characterize it as “good.”
Ken,
[[[At what size does a private property rock become real estate?]]]
Actually in legal terms that is an easy one. If its small enough to move its personal property, which is what I think you mean when using private property. If its too big to move its real property.
The Moon is real property, but individual rocks you break free from it would be personal property. Same with Mars. Same with NEOs. And if you are able to move the entire NEO at will, well then its also been transformed into personal property have been transformed legally from being an asteroid to a meteoroid. And spacecraft have been collecting metroroids, granted very very very small ones, for decades. But size would not matter to the courts, international or domestic, just that you are able to move it at will.
And yes, when the Apollo astronauts and the Russian robots picked up rocks from the Moon and returned them to Earth they became the personal property of the respected governments. And this has been established in their legal systems. In the U.S. its from a couple cases of stolen moon rocks being handled in the court system under the same laws covering other stolen government property. In the case of Russian it was in selling some of the samples at an auction as personal property, same as a painting for the Czar Easter eggs.
Really the Moon right now is like the open seas. If you catch a fish, no matter how big, its yours. If you pick up a Moon, no matter how big, its yours. Why would anyone in their right might want to change that?
That should be or, not for in the last line.
This is an interesting and thoughtful discussion, but there is a focus that has not yet been addressed.
The US Government, via its Executive Branch organization, NASA, has officially declared and decided that the OST prohibits private property claims in space.
See: http://www.orbdev.com/010309.html
“As you may be aware, the Article II of the Outer Space Treaty of 1967, to which the United States is a party, states: “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.” 610 U.N.T.S. 205, 18 U.S.T. 2410. If Orbital Development or its principals are U.S. nationals, this treaty provision would seem to preclude any claim to own Eros.”
This OFFICIAL DETERMINATION by the Executive Branch can be brought to the US Supreme Court for adjudication, because that court has Original Jurisdiction on matters of Treaties.
As an appellate court, the USSC usually only hears 1% or so, of the cases brought to it. However in this matter of original jurisdiction, the court would be required to hear the case.
The suit would demand a ruling as to whether or not the OST prohibits US Nationals from making property claims to natural objects (or planetary lands) in space.
So instead of speculating as is being done here, a path can be taken to advance the issue in a court of law.