I noticed this article over at Government Executive and found the title immediately intriguing. Who own’s the moon? It’s a good question, but the subtitle in the teaser for this story reads, “Space lawyers are still working to settle the question as a new era of exploration begins.”
Wait a minute. We have “space lawyers” now? Is that a thing? Oh, who am I kidding? If there’s a chance for a lawsuit anywhere over anything there’s no doubt a lawyer already specializing in it. But a deeper question remains. If mankind is going back to the moon and setting up at least semi-permanent residence there, how are we handling the real estate? The author (who both teaches and practices “space law”) first asks if Neil Armstrong’s act of planting an American flag on the moon in 1969 means that we claimed the orb as a territory of the United States. Nope. It turns out that the 1967 Outer Space Treaty (which is actually a thing) states that the moon is a “global commons” legally accessible to all countries.
So why do we need space lawyers?
While the legal status of the Moon as a “global commons” accessible to all countries on peaceful missions did not meet any substantial resistance or challenge, the Outer Space Treaty left further details unsettled. Contrary to the very optimistic assumptions made at the time, so far humankind has not returned to the moon since 1972, making lunar land rights largely theoretical.
That is, until a few years ago when several new plans were hatched to go back to the moon. In addition at least two U.S. companies, Planetary Resources and Deep Space Industries, which have serious financial backing, have started targeting asteroids for the purpose of mining their mineral resources. Geek note: Under the aforementioned Outer Space Treaty, the moon and other celestial bodies such as asteroids, legally speaking, belong in the same basket. None of them can become the “territory” of one sovereign state or another.
The very fundamental prohibition under the Outer Space Treaty to acquire new state territory, by planting a flag or by any other means, failed to address the commercial exploitation of natural resources on the moon and other celestial bodies. This is a major debate currently raging in the international community, with no unequivocally accepted solution in sight yet.
So it turns out that space lawyers are fighting over a couple of competing theories. One holds that the moon should be treated like the high seas. Anyone with valid permission to operate from their own nation can go out there, catch fish or try to extract other resources and profit from what they take under internationally agreed upon rules. But the other school of thought (apparently favored by countries without space programs) is that any wealth extracted from the moon should be equally spread around to the benefit of all nations on Earth.
The author compares the need for a “global commons” moon to the results of colonialism on Earth and the need to avoid similar results here. But the difference is that when European powers began planting flags and claiming far-flung territories, there were generally other people there who didn’t particularly want to be colonized.
There’s nobody on the moon. There’s nothing alive on the moon that we know of with the possible exception of some extremophiles deep under the surface. Why is this not a case of first come, first served? Sure… I realize that anyone can listen to this argument and point out how convenient it is that my country coincidentally happens to be the only one to put a person on the moon thus far and one of only a couple with the ability to go back. Fine. I’ll admit to some Americentric bias there. But why not? If we invest the money and resources, not to mention taking all the risks to go, then we should be able to claim the reward.
Similarly, if a private enterprise is the first one to set up shop (SpaceX for example), they should be able to profit from what they find. Others can land in other spots and set up operations if they have the ability. So do we really need “space lawyers” now? Doesn’t sound like it to me.