The final frontier

“The moon is the first mile­stone on the road to the stars.”

— Arthur C. Clarke

“We jour­nal­ists … are also extremely impressed with sci­en­tists, and we will, frankly, print just about any wacky thing they tell us, espe­cially if it involves outer space.”

— Dave Barry

How bet­ter to get set­tlers to move into uncharted and untamed lands than to promise them the sus­tain­abil­ity and wealth that comes from the own­er­ship of land? Give them the land for free on the promise that they will go and set­tle that land, turn­ing it from wilder­ness to use­able farm­land, tim­ber­land or pas­ture. The pol­icy worked for Amer­ica, it worked for the Span­ish in Florida and it worked for Mex­ico in parts of what is now the Amer­i­can Southwest.

But will it work in outer space/ Cap­tain Kirk was no set­tler and the U.S.S. Enter­prise was no cov­ered wagon. But inter­na­tional treaties cover land claims in outer space and are sup­posed to pre­vent any­one from mak­ing a land grab on the moon or other plan­ets. Some in the pri­vate sec­tor are now won­der­ing whether those treaties apply to them at all.

The story really began just as the United States and the Soviet Union were mak­ing their way into manned space explo­ration. Nei­ther nation was cer­tain who would get there first and plenty of other devel­oped nations knew that the U.S. and U.S.S.R. would def­i­nitely beat them to the moon. Indeed they were right — two gen­er­a­tions later no other nation has been there.

To pre­vent the coun­try that got there first from claim­ing the moon as their own, the U.N. Gen­eral Assem­bly adopted the “Dec­la­ra­tion of Legal Prin­ci­ples Gov­ern­ing the Activ­i­ties of States in the Explo­ration and Use of Outer Space” in 1963. That dec­la­ra­tion led to the adop­tion of the “Treaty on Prin­ci­ples Gov­ern­ing the Activ­i­ties of States in the Explo­ration and Use of Outer Space, includ­ing the Moon and Other Bod­ies” (or, for short, the “Outer Space Treaty”) in 1967. The United States, the United King­dom and the U.S.S.R. all signed and the Russ­ian Fed­er­a­tion is also now a mem­ber to the treaty.

In fact, 100 nations have signed on. Twenty-six more are some­where in the rat­i­fi­ca­tion process, though not full mem­bers. (North Korea is most notably absent.) Among other things, the treaty bars nations from plac­ing nuclear weapons in Earth orbit or on the Moon. It pre­vents mil­i­tary exer­cises or bases from being erected in outer space and declares that the Moon and all other celes­tial bod­ies are the “com­mon her­itage of mankind” and can­not be claimed by any nation. As we enter a new era of space explo­ration — a pri­vate era — we are no longer deal­ing with nations in space. The pri­vate par­ties that are mak­ing their way into space are there­fore begin­ning to legit­i­mately ask whether they are cov­ered by the Outer Space Treaty at all.

One pro­posal, recently fronted by the “Space Set­tle­ment Insti­tute” would reward pri­vate space explor­ers with devel­op­ment claims on the Moon, Mars, aster­oids or any other celes­tial bod­ies. Sup­port­ers of the pro­posal say that the added incen­tive would fuel decades of space explo­ration. Oppo­nents note that the Outer Space Treaty already holds each nation to mak­ing sure that its cit­i­zens com­ply with the terms of the treaty, which would mean that the United States could not rec­og­nize indi­vid­ual land claims, but would instead be grant­ing the right to uti­lize the land in the same way that it might grant an oil or gas lease and that even this act would likely be in vio­la­tion of the treaty and might lead other nations, such as China, to with­draw from the treaty and make ter­ri­to­r­ial claims.

Pri­vate space com­pa­nies don’t fol­low national bor­ders, how­ever. For exam­ple, SpaceX, based in Hawthorne, Calif., owns a por­tion of Sur­rey Satel­lite Tech­nol­ogy based in Guild­ford, U.K. Sur­rey is, in turn, owned by EADS Astrium, based in Paris, France. Astrium, in turn, has facil­i­ties in the U.K., France, Ger­many, Spain and the Nether­lands and their Rock­et­plane XP was devel­oped by Rock­et­plane Kistler, which had been located in Okla­homa prior to declar­ing bank­ruptcy in 2010.

Whether the Space Set­tle­ment Insti­tute pro­posal gains trac­tion or not, pri­vate space explo­ration ush­ers in a new era of outer space law and makes clear that space really is, ‘the final legal frontier.’

David Hej­manowski is a mag­is­trate and court admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer assis­tant pros­e­cut­ing attorney.

Posted by Dave Hejmanowski on Apr 12 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.