“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.