I'm referring to exclusive private property rights over surface and subsurface real estate.
Clearly, Article II of the Outer Space Treaty proscribes assertions of national sovereignty over lunar territory:
Quote:
Article II
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.
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But note that no mention is made of private property rights. This
apparent loophole has spawned a virtual cottage industry among writers seeking to "get around" the OST. One of their main arguments is that the later 1979 Moon Treaty quite explicitly prohibits private ownership of the lunar surface and subsurface; thus, it is argued, the Outer Space Treaty must have intended that there be private property; otherwise it would have used language similar to the Moon treaty.
Probably, the most detailed proposal for private property rights on the Moon has been produced by Alan Wasser and his associates at the
Space Settlement Institute, a think tank devoted to devising ways to enable space colonization within out lifetime (
link):
Quote:
International law bans governments from owning land on the Moon, but private entities could legally own such land. The possibility of acquiring a vast tract of undeveloped Lunar real estate would create a major incentive for the private sector to invest billions to independently finance and develop a regular space transportation system and permanent base on the Moon. Freeing the development of a Lunar transport system and base from dependence on government funding would not only provide significant taxpayer relief but would also help make the President's Moon-to-Mars proposal more sustainable. To create a framework for the incentive, Congress should pass "land claim recognition" legislation legalizing private claims of land in space. A land claim recognition bill would not violate the ban on sovereign ownership if the "use and occupation" standard from civil law (rather than "gift of the sovereign" from common law) were used as the legal basis for the private claim. Land claim recognition legislation would allow the U.S. government to "recognize" – acquiesce to, or decide not to contest – a private entity's claim to a large tract of Lunar land once the entity, using its own financial resources, successfully implemented a space transportation system and permanent Lunar base. The private entity, taking ownership of the land, could immediately sell or mortgage large portions of the claim to recoup their investment and generate a huge profit.
Note – A proposed draft version of space land claim recognition legislation is available for review at www.spacesettlement.org/law.
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Their idea is that if a private entity established use and occupation of the Moon by setting up a permanently manned station and claimed an Alaska sized chunk surrounding the station, then they could turn around and sell the land to real estate speculators and hedge funds on Earth in order to raise capital for further exploration. At $20 per acre, they could expect to raise $12 billion; if they offered the land for $100 per acre, they could raise up to $100 billion.
In order to legitimize their claim, however, it would be necessary for a national government on Earth--preferably the United States for starters--to recognize that claim. Then any disputes over titles and such would be settled by US courts. The SSI has even drafted
a proposed law that would require US recognition of privately claimed real estate on the Moon.
But I don't think this idea will fly. Certainly, the spirit of the OST is against privately owned real estate on the Moon. In particular, one of the most important rights that go along with private property is the right to exclude others from trespassing on such property. Yet Article XII of the OST explicitly allows the right of trespass anywhere on the Moon:
Quote:
Article XII
All stations, installations, equipment and space vehicles on the Moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited.
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Even Mr. Wasser acknowledges this problem, but since he would allow any
paying customer to visit, he claims that would satisfy the requirements of the OST. However, that implies that he would exclude non-paying representatives of other states, and that would violate Article XII.
Moreover, arguably, the Moon Treaty merely makes explicit what is implicit in the Outer Space Treaty. Granted, only a handful of states have ratified the Moon Treaty. Nevertheless, it entered "into force" when five states signed and ratified it. Therefore, the provisions spelled out in the Moon Treaty represent the official UN position on the disposition of the Moon.
The primary reason the US did not ratify the Moon Treaty was not because the Moon treaty disallowed private property per se; rather, the main objection was to the "international regime" that the Moon Treaty mandated to regulate and manage any resource extraction that might take place on the Moon. Such a regime would be a cumbersome bureaucracy, it was feared, that could impose international taxes that would be redistributed to developing nations.
Finally, Article II of the OST proscribes "national appropriation by claim of sovereignty, by means of use or occupation,
or by any other means". Arguably, recognizing private property rights that the UN does not would entail an assertion of sovereignty; it would assert that US courts have the legal authority to settle disputes on the Moon, and therefore fall under the "any other means" caveat in Article II.
Therefore, if it is desirable that there be private property rights over real estate on the Moon, the only way that can be accomplished securely is through radically amending the OST, or else withdrawing from the OST altogether, and asserting national sovereignty over the Moon the old fashioned way through use, occupation, and gunboats if necessary.