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:
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):
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:
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.

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"Ignorance more frequently begets confidence than does knowledge" -- Charles Darwin

Well, No. I would say that no private person or entity can have property rights on other bodies in space under the treaty and present circumstances.

The reason for this is simple, property rights are given by the state that the property in question falls under. It is simply a contract where a state say that they will let you live on their land as if it was your own, help defend your right to be there and support you in other ways, in return you may have to pay taxes, help defend the state and so on. If there is no state holding the land in claim, there can be no property rights at all.

Of course a private person may live on such a body, and would in effect own the land as long as that person could defend it, and I guess that would extend to private entities too. However this requires actual occupation, not just saying one own something.

However, there might be certain restrictions, they might not be able to let some of the land move over into other hands unless they also pass the defence of the land to those hands. That means that a big company or union of residents can't set up a defence system that covers a big area and start selling plots to private individuals or entities, because that would make them a defacto state, and so they would not be able to keep the land without it being a violation. That is, unless it is clearly spesified somewere that the treaty only applies to states of the earth, of course.

The question is if that would matter anyway, the point being that if you are there, there is really little to be done, it is hardly likely that the earth would launch a strike against some little colony or corporate state on some other planet for. They may chose to deny the transport of goods too and from the colony, though, and employ sactions/the law against the earth based part of the operation, and unless the colony was a selfsufficient system, this would essentially be a siege.

Though, I expect they would rather call a meeting of partisipants of the treaty, sett up certain guidelines and end up with some change of the law or bend it a little. I expect that it would be possible to work out something that suited all parts. For example, it may be to both sides advantage to let scientists use spare room on the transports and run experiments in the colony, or something like that.

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Game over, you lose, we hope you enjoyed playing the exciting game of Thermodynamics...

Hi TrAI,

You bring up some interesting points. The system you describe where property rights derive from sovereignty is known as "common law" and is the law of the land in the US and most European countries (but not France). Thus, Queen Elizabeth II owns more land on Earth than anybody: over 6 billion acres, including the entire countries of Canada and Australia! In the US, the government has sold or given away title to most of its land.

But this raises a point regarding Alan Wasser's proposal for a law that would recognize property rights on the Moon: it would set a dangerous precedent in that it might seem to legitimize squatter's rights on property within the terrestrial United States; whether it might also be struck down by the high courts as unconstitutional, I do not know; but probably not, see below.

Civil law, like they have in France (and Louisiana, I think) do in fact recognize squatter's rights of those who have mixed their labor with the land. So France, at least, would have no internal legal problem with recognizing property rights on the Moon.

You also raise another interesting point: what will happen when private settler's start taking on the characteristics of a nation state, and decide they want autonomy from the Earth? Would not a declaration of independence from such folks constitute an assertion of national sovereignty over the Moon, and therefore be in direct violation of Article II of the Outer Space Treaty?

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"Ignorance more frequently begets confidence than does knowledge" -- Charles Darwin

Did we need a whole new thread for Warren's tirade against the OST and NASA in general?

Hey! I've got nothing against NASA; it's not their fault that they aren't properly funded.

As for the OST, the other thread was about whether the OST has historically been a drag on space exploration, and whether it might continue to be in the future.

In this thread, I was hoping to solicit comments more on the legalese aspects of the Outer Space Treaty, and on Alan Wasser's and the Space Settlement Institute's plan, in particular, to get around the OST by having the United States recognize Alaska-sized chunks surrounding a privately financed, permanently manned lunar station. While I admire Mr. Wasser's scholarship with regard to the Johnson administration's reasons behind backing the OST, I think maybe he's overreaching a bit with his private property rights recognition plan, and that a better strategy would be to amend the OST, withdraw from the OST, or redraft a new Moon Treaty that would accomplish his essential goals.

I'm working on a "Grand Compromise"--a proposal for a new treaty that will form a chapter of my neverending thesis--that will provide incentives for lunar settlement, allow for claims of national sovereignty over portions of the Moon, yet keep the Moon from being entirely claimed by one nation-state, instilling healthy competition, while reducing the chances for arms races and armed conflict, yet keep the UN relevant that I'm not quite ready to unveil at the moment. So I'm just fishing for some more ideas for now.

Besides, there's nothing else going on in the Space Exploration section. Just trying to help out and get something going. Sorry if it's boring.

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"Ignorance more frequently begets confidence than does knowledge" -- Charles Darwin

Actually, I do have a further question: for those of you who think that there are no privately owned surface rights on the Moon according to the OST, do you think that this is a good thing?

If not, how would you recommend changing things if you were the Secretary General of the UN?

The converse could be asked of those who believe private property rights are allowed under the OST. That could still be a bad thing; I ran across a Cato Institute essay that with no national sovereignty and private surface rights, potentially more of the lunar surface would be available for exploitation than would be the case if there was national sovereignty because nation states often set aside vast tracks of land as wilderness parks. So if you like wilderness, you still might want to change the situation, even if you think private property is allowed under the OST.

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"Ignorance more frequently begets confidence than does knowledge" -- Charles Darwin

Lawyers word these treaties to insure lots of work for future lawyers. Lawyer, boo hiss. Neil

I´d say it is a pointless thing, since those lands cannot be explored in any viable economic way. But, actually, there is evidence that concentration of unproductive land in the hands of few people [latifundia] is a hindrance to the development here on Earth.

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"As truth is gathered, I rearrange,
Inside out, outside in - Perpetual change." - A British rock band

Not yet, but people are working on that. But given such difficulties, even you must admit that would-be capitalist entrepreneurs should be given as free a hand as possible, free of encumbrances like royalties, license fees, tariffs, and taxes that make a borderline proposition impossible.

Whether there's been too little or too much development here on Earth is a question everyone must ask themselves. As for the Moon, I'm tending to come around to your way of thinking. When Ronald Brak first asked where space exploration would be at if the world just gave the Moon to the US in the 1960's without a fight, I glibly responded that there would be thriving "incipient colonies" by now. Then I back pedaled and suggested that there at least would have been permanently manned stations on the ground for decades by now. But the more I think about it, the US would have relaxed and still sacrificed NASA's budget for Vietnam. That's because the US would have achieved it's primary goal--keeping the Moon out of totalitarian hands. The only way the US would have kept going is if the Russians went for broke, and refused to quit, and continued to set about perfecting a sovereign claim to the Moon. The US never really wanted the Moon for itself; but it was going to make damn sure that no one else got it either. Giving the whole Moon to the US would have had the same effect as signing the OST. So yes, I can see how massive land holdings can lead to a monopoly--Pliny the Elder complained about six individual Romans owning the continent of Africa. So the effects could be as bad if the entire Moon was controlled by one or a very few narrow interests. What is needed is healthy competition. Something more than prize gimmicks worth a paltry tens of millions of dollars.

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"Ignorance more frequently begets confidence than does knowledge" -- Charles Darwin

Yes. That's why I said "I do not believe OST has been a hindrance yet." I was thinking of posting this exact point on your earlier thread, but decided you probably would not believe it. I am glad I was wrong.
Which they had no resources or expertise to do. After death of Korolyev, any hope of USSR "perfecting a sovereign claim to the Moon" was gone. It would have bankrupted the country, and Soviet leadership knew it. No matter what, US would have ended up "winner" -- and without any permanent bases.

BTW, you are welcome to use my example of Arctic vs. Antractic research.

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Fiction has to be plausible. Reality is under no such constraint.

"If not, how would you recommend changing things if you were the Secretary General of the UN?"

The problem is once you go to the UN about space rights you endow it with the legitimacy to make the rules. This is a dangerous assumption. Do we really want the same organisation which has the world's worst human rights offenders sitting on its Human Rights committee to lord it over a on a global space treaty?

I don't think the UN should be involved at all. If anything a new global org should be set up; chaired principally by those nations most active in space at the moment, with more nominal seats for developing nations. They get their rights reserved but until they can act upon space projects they should not be vetoing or obstructing a treaty for property or leasing rights in space.

A UN treaty for space will always settle for a lowest common denominator solution.

The problem with that is that completely bailing on the OST and the UN is going to be a hard sell politically within the US even without taking into account world reaction.

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"Ignorance more frequently begets confidence than does knowledge" -- Charles Darwin