Transterrestrial Musings

Comments

I say skip both the nationalist and transnationalist approach. Private property rights can be asserted by private individuals under a natural law theory without the need for any nation or any organization of nations (U.N. or Leage of Nations).

Do exactly what Alan Wasser proposes, except do not ask permission from ANY terrestrial government first. Follow Rousseau's advice -- go to the Moon or Mars, build a fence and say to humanity "Who has a problem with this?"

I do oppose the United States seeking to extend its sovereignty out there as that will create a point of conflict with other terrestrial powers and will require a future replay of 1776 (see Heinlein's Harsh Mistress novel for an example).

Better to avoid that by having Washington recognize moon miners as independent trading partners from the beginning. Or treat moon miners like US flagged ships on international waters -- claim jurisdiction over the equipment but not the terrain.

Posted by Bill White at December 11, 2006 08:30 AM

The nationalist approach is a much slandered method. Strictly private property rights are meaningless without a legal structure to uphold them or an armed force to defend them. Granted space piracy is unlikely for quite a while (probably years or decades away from the first private space industrial enterprise) but it will happen eventually. Say what you want, but private militaries loyal to corporate boards are far scarier to me than national armed services beholden to (preferably liberal democratic) governments.

I don't see how a Lunar/Martian Revolution is inevitable if the colony is state-sponsored. The US broke off of the UK because of restrictive policies, not some geographical determinism. The UK started acting nicer and Australia and Canada are still in the Commonwealth.

I suspect that nationalism and empire-building is probably the only way to get humanity into space in large numbers. It doesn't have to be violent, and may benefit from a type of international arbitration system that seeks to assist in deconfliction rather than being invested with dictatorial powers. Maybe.

I, for one, would be much happier having the Constitution and Stars and Stripes with me on any possible chunk of rock I happen to find myself on. At least then I know I have a really good chance of seeing an American cruiser or two to help me out if something bad happens.

Posted by brent at December 11, 2006 08:54 AM

Brent, I believe religious colonies have real potential.

As for mining rights, we do not need soveriegn territory to accomplish that. US flagged trawlers can catch fish in international waters, fully protected by the US military. There are rules about non-interference that prevent a Japanese fishing trawler from cutting the nets of a South Korean trawler and so on.

A US He3 mining facilty can sift He3 from the lunar regolith without any claim to the underlying terrain (no real estate is claimed) and the DoD can protect that facility with the same vigor it would protect a US cruise ship off Mexico or a US flag oil tanker docked at Bahrain.

Posted by Bill White at December 11, 2006 09:00 AM

The same treaty that says "no nation may claim" says any nation can set up a "research and scientific" station.

What is the definition of "research?" Methinks that when private space travel becomes affordable, suddenly the Panamas and Liberias of the world will be licensing "research" stations under very liberal terms.

These private "research" stations will be legal under international law, and have the same protections as a Panamanian-flagged cruise ship. It will be private property in all but name.

Posted by Chris Gerrib at December 11, 2006 10:31 AM

Chris, that loophole (provided it exists) could cut another way too. A military base, forbidden under the treaty, could be simply redefined as a "research station." "Weapons? Sure, but just for defensive purposes against the American Imperialists."

Posted by Mark R. Whittington at December 11, 2006 10:35 AM

Actually, Chris, those stations would be private property both in the letter and the spirit of the law. Ownership of the underlying terrain (the land or real estate) will be a problematic issue but any PGMs or He3 extracted will become the private property of the extractor.

Wayne White (no relation) makes a terrific case that the right of any such facility to operate safely assures that a competiting facility cannot encroach too closely once the first one is built.

Economic zones may not be respected but if a team of your robots are swarming over an intact asteroid fragment, no one can move your robots. Under current law.

= = =

As for selling facilities to other nations, I believe that is a terrific way for private space companies to generate revenue. Brazil certainly cannot afford its own moonbase but suppose Lockheed and Bigelow joined forces to sell a luanr habitat and transportation?

Why couldn't Lockheed decide to use Jon Goff's architectures and partner up with Bigelow and start negotiations with Brazil say tomorrow to sell them a facility adjacent to the proposed NASA moonbase?

Posted by Bill White at December 11, 2006 10:54 AM

This is an interesting discussion.

One point I would like to bring up is that people seem to think the Outer Space Treaty is inviolable. To think this is a mistake. I doubt it will last for any time at all once the issues we are discussing becomes close enough to reality that more people take it seriously beside space folks on web sites.

Posted by brent at December 11, 2006 11:03 AM

All of this discussion about mining rights is spurious in the context of this article, which is about property rights.

Posted by Rand Simberg at December 11, 2006 11:07 AM

Rand, mining rights are property rights. They are a sub-species of real property law.

In law school they teach us that property rights should be viewed as a bundle of sticks.

It is my assertion that private players can grab many (but certainly not all) of those sticks under current law and without any major reform whatsoever of current established international and space law.

I also assert that those sticks we cannot grab from the bundle (sovereign ownership of real estate) are not particularly important to closing a business case, if one gets creative about work-arounds. If I have the right to maintain a facility within a given lunar crater for as long as I can physically maintain that facility, not have a "deed of title" becomes less important.

Posted by Bill White at December 11, 2006 11:20 AM

And it is my assertion that this post is about grabbing all of them, not some of them.

I also assert that those sticks we cannot grab from the bundle (sovereign ownership of real estate) are not particularly important to closing a business case, if one gets creative about work-arounds.

And I also assert that this post is not about business cases. It's about property rights, land ownership and space settlement. You approach is ignoring that, which is why it's spurious.

Posted by Rand Simberg at December 11, 2006 11:24 AM

For example, He3 mining.

My understanding is that He# mining will require giant machines to traverse the lunar surface ingesting regolith and extracting volatile and then depositing the regolith back on the surface.

I envision something like a giant combine moving across the surface of the Moon like farm equipment moving across Kansas sucking up wheat and spitting out chaff. Or like a Japanese factory ship trawler sucking up tuna across the North Pacific.

Why do we need land ownership before such machines can start sifting luanr regolith to extract He3 or even LOX? After all, once a given location has been worked over, it has little value thereafter.

Posted by Bill White at December 11, 2006 11:26 AM

Rand, seeking the perfect is the enemy of seeking the good enough.

Posted by Bill White at December 11, 2006 11:28 AM

Why do we need land ownership before such machines can start sifting luanr regolith to extract He3 or even LOX?

Who claimed that we do? Please stop responding to straw men, and keep (well, actually, get) your posts on topic (i.e., property rights, not mineral rights).

Posted by Rand Simberg at December 11, 2006 11:29 AM

Rand, seeking the perfect is the enemy of seeking the good enough.

A useful aphorism, but so general as to be meaningless in application, particularly this one. We aren't seeking the perfect. We are seeking property rights.

Despite the fact that you have the subject on the brain, and persist in polluting the discussion with it, neither the original article, or this post about it are talking about resource extraction.

Posted by at December 11, 2006 11:32 AM

Okay :-)

I now assert that seeking to set up a real property system ahead of time is just asking for trouble.

Instead, get some people on the Moon, have them build a fence and say "This land is our land!" If no one objects, mission accomplished. If someone objects, then we work it out in court.

Natural law theory says that no one needs the permission of any government (nation or U.N.) to do this.

What will the courts say? I dunno. No one does, the question has never been asked before in an official setting. But you gotta pay your money and take your chances which is why business cases matter.

Posted by Bill White at December 11, 2006 11:33 AM

The only problem with the above approach Bill is that there is likely to be a shortage of people/companies willing to risk the capital to be the test case. IE when someone declares " This is our land" and it goes to court what happens if the court decides "Oh no it isn't!"?

Posted by Cecil Trotter at December 11, 2006 11:39 AM

I must agree with Bill here. Even in the US, you don't have absolute control over property. Some sticks are missing. Just getting a few sticks can change the economics of the situation. Also gradual property rights are a possibility here. Namely Rand, that one might gain incrementally the collection of property rights you refer to.

It's an easy case to obtain mining rights, but it might be far more difficult to legally obtain a genuine title to a major asteroid even when you have the money and political resources to throw at the challenge. One might need to foster some sort of activity like mining on the asteroid in question before they can move on to acquire more complete property rights to that object.

Posted by Karl Hallowell at December 11, 2006 11:43 AM

Cecil, I agree with you about this:

That is why I was talking about resource extraction being permitted under current law which allows a business to close its business case under current law. Place a hotel in a lunar crater and balance the books with tourist revenue and at some point just say "Oh, by the way, we assert a natural law claim for ownership of the real estate the crater."

The Outer Space treaty does prohibit nations from giving land grants. It is silent about the private claims of purely private parties.

= = =

How did terrestrial property rights begin? For the most part tribe A wiped out tribe B and took possession and as time passed habit and tradition became solidified.

I very much wish to avoid the bloodshed aspects of this but a similar purely commercial competition can occur. But in the long run, only practice, habit and tradition can establish lunar real property rights.

Posted by at December 11, 2006 11:49 AM

I also think that ownership should require some degree of exploitation. There's little point to divying up resources among people who show no capability to exploit the resource. It leads to the same sort of problem as not owning the resource in the first place. A particularly thorny problem is that ownership transfer is often flawed. We don't want to end up in a situation where no one can do anything because ownership of certain property is either uncertain or owned by people with interest in thwarting space exploration.

And what's the point of owning something, if you can't do anything about squatters?

Posted by Karl Hallowell at December 11, 2006 11:51 AM

That is why I was talking about resource extraction being permitted under current law which allows a business to close its business case under current law.

You continue to miss the point. This isn't about business cases, or businesses, or profits. It is about human rights, one of which is a right to property. It's also about providing secure title, which is essential to getting people to buy the property (which was the point of the article).

Posted by Rand Simberg at December 11, 2006 11:53 AM

A particularly thorny problem is that ownership transfer is often flawed.

That's one of the fundamental issues that has to be dealt with. One of the fundamental property rights is the right to reassign them. People might be willing to buy lunar or Martian parcels on speculation, as long as they know that a) their property rights will be protected (e.g., squatters will be tossed off) and that they can sell the property in the future. But as the legal situation exists now, a lunar deed is purely a meaningless novelty.

Posted by Rand Simberg at December 11, 2006 11:57 AM

Maybe I failed to make this clear,

I believe the Jeff Brooks proposal is a BAD idea for just about the same reasons you offer. My next point is that to replace the Jeff Brooks proposal with a proposal that the United States simply do what Brooks proposes the "international community" do is also a bad idea.

Now, if we start with Alan Wasser's proposal but remove the "ask the US government to validate natural law claims" then a private player can assert natural law claims without asking ANY government "Mother may I"

The key question is whether property rights originate with government or whether governments are formed to protect pre-existing property rights. The full lunar property rights regime you seek cannot emerge until Luna is incorporated under the jurisdiction of a government.

I would prefer that government be set up by lunar residents forming their own polity. Otherwise, we risk a repeat of the Treaty of Tordesillas where the Pope purported to divide the New World between Spain and Portugal, much to the dismay of France, England and the Dutch.

Posted by Bill White at December 11, 2006 12:01 PM

My next point is that to replace the Jeff Brooks proposal with a proposal that the United States simply do what Brooks proposes the "international community" do is also a bad idea.

I wasn't proposing that (only) the US do it.

we risk a repeat of the Treaty of Tordesillas where the Pope purported to divide the New World between Spain and Portugal, much to the dismay of France, England and the Dutch.

I also wasn't proposing that we let the Pontiff decide. I was proposing an international treaty laying out who gets what. If you want to distribute it equally among the United Nations (perhaps by population), that would be OK with me, despite the egalitarian nature of it (though there'd be fights over the lunar poles). But assign the sovereignty now, and allow it to be transferrable (the US could afford to just buy out the countries that couldn't afford to, or didn't want to develop their share), and I don't see what the problem is (except to the ideologues who are opposed to nationalism and sovereignty. And property rights).

Posted by Rand Simberg at December 11, 2006 12:12 PM

Rand - sorry if I started a comment war here. That was not my intent.

People want property rights for two reasons - to "use" the property or sell / trade the property. In my opinion, the early settlers will be content with pseudo-rights of "use." They will either be for-profit types or so disenchanted with life on Earth that they'll take their chances on the first boat out. (Pilgrims, anybody?)

In the long term, settled, real property rights are needed. My hope is that the current Outer Space Treaty gets reworked to allow it. My suspicion is that at some point the settlers will have to say "it's ours, come move us and bring your army."

Lastly, although this is an interesting discussion, until we get cheaper space travel, it's all very moot.

Posted by Chris Gerrib at December 11, 2006 12:19 PM

I must be the only one that still uses IE... 17 comments, and not a one about how this post is broken in IE...

Sorry, Rand, just doing my usual IE Post Patrol.

Posted by John Breen III at December 11, 2006 12:22 PM

John, I think it's more likely that a lot of people don't bother to read the linked article before commenting on it. Anyway, it's fixed, thanks.

Posted by Rand Simberg at December 11, 2006 01:07 PM

The problem with staking a claim that isn't legally recognized is that you open yourself to interference or even outright theft from parties that can obtain legal claim to your residence. For example, it'll probably be a long time before someone can thrive in space without any sort of Earth-side assets. So even if you have no interference with your space-based activities, you can have all sorts of legal actions against anything you keep on Earth.

Posted by Karl Hallowell at December 11, 2006 01:38 PM

To focus entirely on the article I dispute the accuracy of this:

Aside from reducing nationalistic rivalry as a motivating factor for manned space exploration (a mixed blessing), the Outer Space Treaty presents a major problem for the advocates of space colonization: it makes impossible the buying and selling land on the worlds of the Solar System. Since no country can have legal sovereignty over moons and planets, no legal system can be in place to regulate the ownership of real estate. If nobody owns it, nobody can sell it.

Instead the Treaty says:

“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.”

The prohibition on national appropriation does not necessarily include private appropriation. Thus my focus on the successful harvesting of resources. Put the PGMs in your bag, put the LOX in your tanks and its yours.

Settlers would be secure in their facilities. Spacecraft, habitats, robots all remain the firm private property of the owner and interference would be a violation of current law. Even on Antarctica there is no dispute that explorers can ingest oxygen and melt snow for drinking water without interference.

The Outer Space Treaty includes a prohibition on interference with the ongoing operations of another. If my He3 mining equipment is chugging along, it would be illegal for a Chinese raider to hi-jack the equipment or interfere with its operation and as Karl says, there can be terrestrial recourse for such violations.

Yes, it might be "nice" to have a system to assign ownership of all of the Moon, or Mars, but at what political price?

= = =

Legitimate ownership of private property can be traced to two primary but distinct theories -- natural law and gift of the sovereign.

Gift of the sovereign is the more common in the West and asserts that ALL property originally belonged to the sovereign power who at some long forgotten moment gave it to its citizens. Valid title is traced to this original gift.

Natural law theory has been summarized by John Locke. If I remove an item from the "state of nature" by my efforts it becomes mine.

Rather than convene an international convention to "solve" this problem, I prefer to let the long term resolution of these issues emerge from the activities of the people who actually go out there.

Posted by Bill White at December 11, 2006 02:08 PM

Bill, we have a very useful model for property rights, shown to be tremendously successful, based on English common law. Rather than having colonists attempt to "roll their own" de novo, we need to be working to expand the Anglosphere into space, and the sooner the better.

Posted by Rand Simberg at December 11, 2006 02:12 PM

I agree with this 200%:

I am a lawyer (as many know) and the English common law is EXACTLY what we should export. But how? The issue is not the objective, but how to best accomplish that objective.

= = =

Property rights in England pre-existed the development of the common law, therefore the common law itself does not instruct as to the best route to spread the common law to the Moon and Mars. There is useful history in America about conflicts between holders of Virginia land grants and squatters in Kentucky and Tennessee. The study of Andrew Jackson's era is useful in this regard.

Anyway, the Brooks approach would be a complete and total disaster (IMHO) with respect to our shared objective and any "global conference" would be filled with lawyers seeking to add strings and restrictions to whatever property rights regime gets enacted. Even if the Moon were divided up by global population (does North Korea get a share?) and transfered to the current sovereign nations, lawyers would seek to impose zoning laws and Moon Treaty nonsense and stuff like that on whatever title was derived from the conference.

I very much fear letting issues of sovereignty and private property be voted upon by the nations of the world. How would the 3rd World vote?

I say it is better to stick with the Outer Space Treaty and deny that ANY terrestrial government has the authority to extend it sovereign power over the Moon. In the meantime, get traders and merchants and free thinking people out there as fast as possible.

Get Anglosphere-ians out there, then let the people out there vote on their own laws. No matter what legal manuevers we undertake, in the end the strategy described by Nathaniel Bedford Forrest will decide which set of memes prevail -- Get there fustest with the mostest.

If we want Anglosphereian memes to prevail, Anglospherians need to go out there, in numbers. Otherwise, whatever paperwork we do on Earth will be ignored.

Posted by Bill White at December 11, 2006 02:44 PM

Another thought -- in my professional life I have set up condominium projects and prepared subdivisions of land. The Developer always adds restrictions and covenants to the title before selling parcels. Look at your own Abstract of Title to see what I mean.

If there were a global conference to "settle" lunar property rights, all sorts of deed restrictions would be offered to encumber the title issued from that conference. And the West would be out-voted at avery turn.

The United States might well be assigned soveriegn power over X% of the Moon but I predict the strings attached to that grant would be horrific.

Better to find a way to avoid the whole mess in the first place.

Posted by Bill White at December 11, 2006 02:50 PM

I very much fear letting issues of sovereignty and private property be voted upon by the nations of the world.

I didn't say anything about letting them vote, Bill. I said we should negotiate it. If we can't get a good deal, then we'll do something else.

As for how to spread Anglospheric ideas, have you read the book?

Posted by Rand Simberg at December 11, 2006 03:01 PM

I very much fear letting issues of sovereignty and private property be voted upon by the nations of the world.

I didn't say anything about letting them vote, Bill. I said we should negotiate it. If we can't get a good deal, then we'll do something else.

As for how to spread Anglospheric ideas, have you read the book?

Posted by at December 11, 2006 03:01 PM

A long standing legal maxim:

Possession is 9/10ths of the law. Perhaps over the past century this has eroded to 8/10ths or maybe even 7/10ths but I predict that for the Moon and Mars, the scale may slide back again towards or past the 9/10ths point.

Before we worry about treaties and legal argument, get boots on the ground! If we pay for those boots with advertising revenue and by exploiting PGMs acquired in a manner consistent with the current Outer Space Treaty, so much the easier.

As for Bennett, I like this quote taken from an amazon comment:

James Bennett says that in general those with an English Heritage, or who are largely influenced by Anglo ideas, are more flexible and will be able to react quicker than European Nations, Japan, China, India, and so on. They have a greater ability to trust each other, and take initiative on a personal level. His sees the development of organizations which support each other that transcend national boundaries. There are a number of libertarian ideas here.

Anglosphere-ians need to get out there and TRADE using Bennett's idea of a net-worked commonwealth.

Posted by Bill White at December 11, 2006 03:13 PM

Anglosphere-ians need to get out there and TRADE using Bennett's idea of a net-worked commonwealth.

We can agree on that, and still need to establish a reasonable off-planet legal regime as soon as possible.

And you didn't answer my question.

Go out and read the book (I'll get a cut if you follow the link to buy it).

Posted by at December 11, 2006 03:16 PM

Done. And you can buy a large Starbucks coffee with the referral fee. :-)

Posted by Bill White at December 11, 2006 06:24 PM

Done. And you can buy a large Starbucks coffee with the referral fee.

Thanks, Bill, but I don't drink coffee at all, let alone Starbucks. But I could buy a lot more if you buy a lot more while shopping... ;-)

Posted by Rand Simberg at December 11, 2006 06:45 PM

I realize that it's more fun to vent than to do any actual research, but before arguing that the Outer Space Treaty prevents exploiting lunar resources, it might be useful to go learn about the subject.

A good place to start is the interview that David Livingston did on The Space Show awhile back with three space lawyers. Don't remember the date or the speakers, but they were all pretty clear that the OST doesn't prevent the private exploitation of lunar resources. Go read about it, you'll get yourself educated.

Posted by Rodney Naylor at December 12, 2006 03:36 PM

If someone had actually argued that the OST prevents exploiting lunar resources, your post might have a point. The issue was property rights, not resource exploitation.

Posted by Rand Simberg at December 12, 2006 05:08 PM

Rand, if you said real property rights (i.e. what lawyers call real estate) you would be correct.

However, mineral rights and the such are property rights therefore Rodney Naylor is correct as well.

That said, exclude the PGMs and He3 or other volatiles (LOX, H2O, CO2) and lunar land is scarcely worth paying much for.

Posted by Bill White at December 12, 2006 06:58 PM

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