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Who owns the moon?

Back in 1980, a former ventriloquist and car salesman named Dennis Hope was out of work, going through a divorce and struggling to make ends meet. As he tells it, he was driving along wondering what he could do for cash flow when he looked through the car window, saw the moon and thought: “Now there’s a lot of property.”

Hope did some research in a college library and discovered the 1967 Outer Space Treaty, a pact in which dozens of nations, including the United States, laid out the basic legal guidelines for dealing with celestial bodies. Hope thought he saw a loophole: The treaty declares that no nation can assert sovereignty over the moon, but it fails to say clearly that individuals can’t.

So Hope sent a note to the United Nations, laying claim to the moon as well as the other planets and moons in the solar system, and went to work. In the years since, Hope has made a tidy fortune selling deeds to plots on the moon and other celestial bodies; he estimates around $ 12 million so far. A typical moon acre costs $ 24.99. The whole of Pluto is going for $ 250,000 — a good deal, but a tough commute.

Even if you don’t seriously credit the idea that one man in Rio Vista, California, is sole proprietor of the moon—and most experts don’t—Hope’s quixotic career attests to the legal vacuum surrounding real estate that doesn’t happen to be located on this planet. And as humans prepare to return to the moon, with a dozen or more nations and private firms eyeing the lunar surface for everything from mining to scientific research, the arguments over ownership are expected to become only more complicated.

Space lawyers dispute the existence of Hope’s loophole, and the U.N. never acknowledged his claim. (Hope is unfazed: “I wasn’t asking their permission. I was merely informing them of what I was doing.”)

But he’s right that the primary legal framework governing space remains that 52-year-old treaty, negotiated at a time when computers were the size of school buses. Today, as space becomes a legitimate commercial target, there are growing questions about whether the Outer Space Treaty is up to the job.

Left: A copy of a deed for an acre of the moon signed by Dennis Hope; right: Hope with copies of a lunar property deed and a map of Mars.

Left: A copy of a deed for an acre of the moon signed by Dennis Hope; Right: Hope with copies of a lunar property deed and a map of Mars. | James Cheadle for POLITICO

The 1967 pact, signed two years before the U.S. moon landing, is an idealistic document that effectively rules out the possibility that a country can “own” territory in space, even if it manages to plant a flag there. The treaty also states that Earth nations can use the moon and other celestial bodies only for peaceful purposes, forbidding the creation of military bases on those entities and the placement of weapons of mass destruction in space.

But the relatively simple framework of the treaty, which runs around 2,200 words, leaves unanswered many increasingly crucial questions about how people, companies and countries can operate in space. That includes questions about acquiring and exploiting the resources found there, from water to gases to minerals, issues that might have seemed fanciful to the diplomats who negotiated the terms in the 1960s. Which countries will take the lead and which will follow? What kinds of military equipment and activities are permitted? Who will set the rules and mediate disputes? And, far-fetched but still intriguing: What if we encounter aliens with ideas and customs of their own?

As the date of humankind’s likely return to the moon draws nearer, people in the space industry say there’s growing urgency around these questions, and some players have begun pushing to expand the treaty or rethink it entirely. There’s also a creeping worry that the answer may simply lie in first-mover advantage, and that whoever reaches these untapped frontiers first will set the rules for decades, generations, even centuries to come – and possibly even carry out a resource grab of galactic proportions.

Is it ‘finders, keepers’ in space?

Last summer, after a 3½-year journey, the Japanese spacecraft Hayabusa2 reached an asteroid called Ryugu. It has gone on to blast small holes into the surface in attempts to nab some of detritus and return it to Earth. NASA has a similar mission underway, with samples from the asteroid Bennu expected back on Earth by 2023. Both missions are being watched closely by companies such as the Asteroid Mining Corp., a British firm whose name lays out its intentions.

Asteroids contain water and other materials that can help sustain life and potentially power spacecraft beyond Earth. There are at least 15,000 “near-Earth” asteroids alone; these asteroids carry an estimated 2 trillion tons of water, according to some estimates. Think of them as potential gas stations, or convenience stores, for space travelers. (The Asteroid Mining Corp. speaks more grandly, stating that it anticipates a new Industrial Revolution, one that moves “as many polluting industries into Space and out of Earth’s fragile biosphere as possible.” Another firm, Shackleton Energy, wants to extract water from the poles of the moon and deliver it to fuel stations it will place in Earth’s orbit. “One day, we aim to become just a boring space utility,” the company says.

Thanks to a 2015 U.S. law, the Commercial Space Launch Competitiveness Act, if either of these companies reaches the celestial body they aim for, they can do what they want with the material they find. That’s because while the 1967 Outer Space Treaty forbids the declaration of sovereignty over parts of the heavens, it’s been largely interpreted, in the West anyway, as being open-ended on what can be done with the resources found there. The 2015 law was a godsend to U.S. private companies eyeing the moon or other parts of space, because it gave them some legal certainty for the economic development they wish to pursue. Luxembourg has passed a similar law, a gift to many European-based space companies seeking legal certainty for their work.

The key to success, though, is very much in line with the saying: “Possession is 9/10ths of the law” – at least according to the Western point of view. Whoever gets to the material first gets to do what he wants with it. Dennis Hope, for one, may not own the moon just because he says he does. But if he – or a mechanical envoy he sends – reaches it first and starts to exploit its surface, he can take what resources he finds.

Who gets to set the rules?

Even if the international community reaches consensus that it’s “finders keepers” on the topic of resources, there still remain questions about what rules will govern other behavior in space, and who gets to set them.

Say someone wants to set up a hotel on the moon. Or open a restaurant on Mars. Or offer technical services to spacecraft traversing the two. Such commerce, lawyers and analysts say, will require legal and regulatory frameworks as it does on Earth, and existing space treaties don’t provide enough detailed guidance.

Prodded by the private sector, U.S. lawmakers have begun trying to fill this regulatory gap. The House and Senate are considering proposals on regulating human activities in outer space, in particular commercial ventures. Some key obstacles in the ongoing debate center on which U.S. Cabinet department – in particular, Transportation or Commerce – will have authority over what actions in space. The bills, as written now, aim to comply with the minimal obligations in the 1967 treaty, which say countries must authorize and supervise the actions of their citizens — including nongovernmental entities — in space. But overall, the legislation is designed to give companies significant freedom to operate, space lawyers say. That reflects a bipartisan sense in Congress that the less government interference there is, the more private companies will be willing to take risks and innovate in this new frontier.

In theory, companies could start shopping for Earth‘s most lenient regimes. The less heavy-handed a government is, the more companies would want to incorporate under its banner, and the more of the space pie that government may end up claiming. (Think of Delaware’s outsized role in U.S. corporate governance, or the Swiss share of banking.) So where will aspiring entrepreneurs want to base their firms? This may sound technical, but it’s already, quite literally, the stuff of novels: The science-fiction book “Artemis” by Andy Weir posits a future in which the country that ends up dominating the space industry is Kenya, by offering tax breaks and simplified regulations that the West wouldn’t.

There’s so much space in space that you would think there will be plenty of room for different countries and companies to operate without conflict. But what if two nations – or firms based in different countries – clash? If a Russian team of robots (or humans) is trying to dig in the same spot on the moon as an American entity, who will mediate? If one country sets up shop millimeters away from another, threatening to interfere in the latter’s work, what happens then?

There is an International Tribunal for the Law of the Sea, but not one for space. In theory, the International Court of Justice might serve as a forum for space-related dispute resolution, but many countries, including the United States, limit their dealings with the ICJ. The Permanent Court of Arbitration has moved to establish some rules for handling space disputes, but again, there’s no international consensus on that being the right forum.

What about use of force?

The 1967 treaty prohibits placing nuclear or other weapons of mass destruction in space, and it forbids the establishment of military installations and bases on celestial bodies. The document stresses that such heavenly bodies like the moon shall be used “exclusively for peaceful purposes.”

Russia and China, both of whom are challenging the United States on multiple fronts on Earth, have proposed a new treaty that would explicitly ban the placement of traditional weapons – not just those of mass destruction – beyond the Earth’s atmosphere.

The United States, however, has dismissed those proposals as flawed and hypocritical, noting that Moscow and Beijing have been working on satellite and laser technology that could be weaponized. China, for one, has already developed “satellite killers” – projectiles that can destroy satellites. It tested one in 2007 on one of its own aging weather satellites; the satellite shattered into numerous pieces of debris that now pose a threat to other space objects.

President Donald Trump, meanwhile, has ordered the creation of a U.S. Space Force, leading to concerns that the U.S. may violate the Outer Space Treaty itself as it enhances its military defenses.

Is it time for a new treaty?

Such questions are spurring debate on the international level about whether it’s time to come up with new treaties or international regulatory regimes for space activity, agreements that could complement or even supersede the 52-year-old pact that Dennis Hope discovered.

Those who argue for new treaties or an international regulatory regime say existing frameworks are not strong enough to prevent inappropriate behavior and dangerous exploitation of space by private firms or even national governments. Some view the potential dangers of space exploration as requiring an international, unified approach akin to tackling climate change. How to deal with space debris, after all, is the type of problem that could require multilateral cooperation beyond nonbinding guidelines.

But a strong contingent of space officials, lawyers and analysts oppose reopening the Outer Space Treaty or trying to come up with new alternatives. They say the 1967 treaty and three subsequent international compacts provide a solid frame for commercial and noncommercial activity beyond Earth. (The other three treaties deal with liability from damage caused by space objects; the rescue of astronauts and the return of space objects; and registration of those space objects.)

1967 Signing of Treaty on Outer Space

The signing of the United Nations’ Treaty on Outer Space in 1967. The treaty remains the primary legal framework for resolving disputes between countries and companies operating in space. | UN Photo

Trying to amend the 1967 treaty, or crafting a new accord related to space, is particularly fraught now given the deep political fractures among world powers. It’s even less likely to happen during the presidency of Trump, who disdains international agreements. An effort to revise the existing treaty could prompt demands for a variety of changes from an array of players, bogging down what would have been a challenging process no matter what.

Those who oppose revising or creating new treaties argue that the laws and norms of space need to develop piecemeal. They’d prefer to see the continued establishment of bilateral agreements between countries, for instance, that can tackle cooperation or conflict resolution. (The International Space Station is a prominent example of a multiparty arrangement beyond Earth.) In addition, the U.N. Committee on the Peaceful Uses of Outer Space has over the decades laid out nonbinding mechanisms and guidelines for the use of space.

Supporters of this step-by-step approach argue that it makes sense in part because it’s impossible to anticipate every potential challenge or conflict that will arise. “To try to make rules in advance, I think it’s pretty impractical,” said Matt Schaefer, co-director of the space law program at the University of Nebraska College of Law. It’s almost inevitable that the bigger space powers, including the U.S., will lead in establishing benchmarks that others can abide by or copy in their own arrangements.

Already, America’s rivals tend to look askance at U.S. attempts to regulate space using national laws, though it’s hard to tell whether it’s because they genuinely have a different philosophy or if they’re just trying to mess with the Americans’ heads. When the U.S. enacted the law dealing with space resources in 2015, Russia objected, suggesting that resources in space could also be viewed as celestial bodies forbidden to be owned by the 1967 treaty.

Ultimately, a treaty is as strong as the country least willing to respect it, and that’s if they sign up to it in the first place.

Take, for instance, another space pact: the 1979 Moon Treaty. That treaty holds that the moon and its natural resources are the common heritage of humanity. It forbids the use of these resources except through an international regulatory body, and it suggests that developing nations should be given a share of the resources found. Several countries without space programs signed up to it because they worried that in the long run they could get exploited by more powerful nations with access to space resources.

But the three largest space powers, the U.S., China and Russia, have refused to sign the Moon Treaty, viewing it as far too restrictive. The U.S. in particular does not view space as a national park that must be left untouched, but rather like the Wild West with much to offer in the ways of riches for those willing to risk the journey.

Dennis Hope, in his own way, is one such pioneer. But Hope has grown concerned about keeping control of his celestial real estate; along with a “Galactic Government” that he helped establish, Hope plans to notify nations and companies that if they want to use the space property he claimed nearly four decades ago, they’ll have to pay a licensing fee and share some of the riches they may find. The fee, Hope estimates, will run around $ 100,000 for property on the moon.

“We knew it would come at some point, once the private sector got involved in space travel,” Hope, now 71, told POLITICO. “It’s always a battle trying to maintain and keep ownership of what you think you have.”

Nahal Toosi is a foreign affairs correspondent for POLITICO.


Source: Politics, Policy, Political News Top Stories

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