Lunar Homestead legality

Just like the financial section above, this section is going to be short and light. I’m not a lawyer and I have almost no interest in space law. Nope. I actually have zero interest in space law. Unfortunately, it’s a pretty important subject.

Some of the bigger risks that need to be “retired” revolve around ownership of space territory and resources. People are going to be reluctant to invest time and effort into Lunar Homesteading if property rights aren’t resolved. Homesteaders could end up being declared “trespassers” or “squatters” and kicked off their land. The resources they extract could be considered “stolen” because they didn’t have a clear right to them. Other areas of space law include: rescue responsibilities, environmental protection, insurance, and militarization. Right now, space law is one big ugly gray area and one of the reasons we haven’t seen much movement in space settlement.

This subject will also be covered extensively in Book 13 (Economics).

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies

Otherwise known as the Outer Space Treaty. This is the principal legal document governing space law. This international law was passed in 1967 and has been signed and ratified by 109 countries, including the United States [70]. Here’s the link if you want to read the treaty for yourself (http://disarmament.un.org/treaties/t/outer_space/text) [71]. Don’t worry, it’s not very long. While primarily a law to keep weapons out of space, it also deals with several other space issues.

The key points (in my absolutely amateur analysis) of the treaty are:

Article I

Space is open to everyone. The bit that interests me it that “the moon” “shall be free for exploration and use by all States” “and there shall be free access to all areas of celestial bodies” [71].

The “States” bit isn’t a problem because only nations can enter into treaties, not companies or groups. Homesteaders will be acting under the laws of whatever nation they are associated with.

It sounds to me like territory and resources are available for anyone who can get there and hold it. Other people don’t see it that way, mostly because of Article II.

Article II

Here’s the bit that causes the largest amount of friction; “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” [71].

WTF?!? First States are allowed free use of space and then they can’t claim any of it? That doesn’t make any sense to me. This is the article that causes the most heartburn among space advocates because it’s not specific enough. Can companies and individuals claim territory for living and resource extraction if States are not allowed to? Are private property rights even possible under this article? Who knows?

This issue has to be hammered out, preferable before anyone actually lands on Luna and starts mining (or other activities). Once that happens things will get even messier than they are now.

Article IV

No nuclear weapons, other weapons of mass destruction, military bases, testing of ANY type of weapons, or military activities on Luna (but conventional weapons and military activities are OK in orbit apparently). Sounds great, right? Here’s the rub.

The problem is that Earth is at the bottom of a deep gravity well. Anything launched at Earth is going to hit with a substantial velocity. If you haven’t read The Moon Is a Harsh Mistress by Robert A. Heinlein, I highly recommend it. In the book, the Loonies (Lunar inhabitants) launch rocks at Earth from a hidden mass driver with devastating effect.

So, what makes an item a weapon versus simply a tool. Mass drivers can be both. Rockets, lasers, and fission reactors (deliberately blow up a reactor and see what happens) can also be weaponized. All of these items, and many more, could be very useful to any space settlement. Article IV muddies the water on what tech can legally be used by space settlements.

Article VI

This article makes the States responsible for national activities carried out in space; either by their own agencies or non-governmental entities. Lunar Homesteads would fall in the non-governmental category. According to the Article, Homesteads (and any settlement, base, company, etc.) “shall require authorization and continuing supervision” [71]. I’m not really OK with that but I have no idea what we could do about it.

Article IX

There are two things in this section that give me pause. The first is that States must “avoid their harmful contamination” to Luna. That sounds great in theory but the reality is that any human activity will contaminate and change the Lunar environment. Rocket exhaust, leaky habitats, and surface mining will dramatically change the Lunar atmosphere. Oxygen leakage from SPORE activities could substantially degrade the Lunar vacuum. If we are going to settle Luna then we are going to change it. This Article could be used to slow or stop Lunar settlement.

The second is that any signatory of the Treaty can call into question any other signatory’s activities (or activities under their supervision) that they think could cause interference with their activities. This can be done before the activity in question takes place. Again, sounds good. However, I can see this being used as a tool by States to slow down, or stop, space settlement by other States. “Hey, your Homestead construction is messing with our vacuum research”.

Article XII

“All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity.” [71]. So, anyone can demand to visit any Homestead (or other settlement) whenever they like? That sounds pretty invasive to me. Think about how you would feel if some other nation claimed the right to inspect your home whenever they like. First, I’d laugh my ass off. Then I’d tell them to go kick rocks. Or pound sand. Or any other saying you’d like. Not even the U.S. federal government can enter my home whenever they like. I can see this Article causing all kinds of problems in the future.

Many smaller and/or less wealthy countries are rightly suspicious of major space powers. Their argument is that their inability to participate in space development will allow a handful of countries to claim everything. And they aren’t wrong because that’s how humans have historically operated. That’s how the Moon Treaty (see below) came into being.

Lunar Homesteading could break that paradigm by allowing even the smallest/poorest country to have a presence on Luna. Would that be the best use of their limited resources? Probably not.  

Other UN Committee on the Peaceful Uses of Outer Space (COPUOS)

The committee that created the Outer Space Treaty also created three provisions to that treaty. They also created the Moon Treaty, which we’ll get to next.

  • Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968) – Also known as the “Rescue Agreement”. Basically, help people that need help and return stuff that isn’t yours. It’s really vague and fails to define some basic things, such as who pays for rescue operations. You can read the full document here (http://www.unoosa.org/pdf/gares/ARES_22_2345E.pdf).
  • Convention on International Liability for Damage Caused by Space Objects (1972) – Also known as the “Liability Convention”. Could be summed up as “if you launched it then you’re responsible for it”. You can go here (https://treaties.un.org/doc/Publication/UNTS/Volume%20961/volume-961-I-13810-English.pdf) to see the treaty.
  • Convention on Registration of Objects Launched into Outer Space (1975) – Also known as the “Registration Convention”. This document requires States to give specific information to the UN about each launch. Basic orbital info and general functions plus who launched it and from where. Nothing exciting but you can find the document here (https://treaties.un.org/doc/Treaties/1976/09/19760915%2003-08%20AM/Ch_XXIV_01p.pdf).

None of these provisions really impact space settlement and can be mostly ignored. I know I’m ignoring them.

Agreement Governing the Activities of States on the Moon and Other Celestial Bodies

Ahh, the “Moon Treaty” or “Moon Agreement”. Created in 1979, only 18 countries have ratified it [72]. None of the major space players (U.S.A., Russia, China, Japan, and Europe have not ratified it [72]. India has signed it but not ratified it [72]. Designed to elaborate on the Outer Space Treaty, specifically the issue of resource use and territory; there’s a good reason why States that are actually conducting space exploration won’t get on board. It rather vague and it takes power away from nations and put it in the hands of the United Nations.

Much of this treaty is similar to the Outer Space Treaty so I won’t go into those Articles. Let’s break it down. (http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/moon-agreement.html)

Article 11 [73]

This is the Article that causes the most problems. Here are the components of the Article.

  1. “The moon and its natural resources are the common heritage of mankind” – Say what? “Common heritage of mankind”? So, if I’m a Lunar Homesteader and I pick up a rock that rock belongs not to me but to every human in existence? And if I then process that rock and extract oxygen and iron, am I then stealing from all of humanity? This Article is nonsense. Lunar resources should belong to anyone that can stake a claim and work it.
  2. “The moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means” – And by extension non-governmental organizations can’t claim territory as well. And if you can’t claim the land you are on then you have no property rights as well. So why bother going?
  3. “Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non- governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof.” – Well there you have it. Nobody can own Lunar land or resources. You (and the State you represent) are in violation of the treaty if you establish a Homestead or other settlement on Luna. This part of the Article effectively kills commercial ventures and settlement.
  4. “States Parties have the right to exploration and use of the moon without discrimination of any kind, on the basis of equality and in accordance with international law and the terms of this Agreement.” – Wait, what? But you just said…
  5. “States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible.” – So, anyone wanting to conduct Lunar mining has to abide by some “international regime” that has yet to be determined? No wonder this treaty failed to get traction.
  6. This one is long so I’ll just paraphrase it. Anyone exploring Luna has to report all their findings, including natural resources, to the UN. Which leads to….
  7. The UN will then determine “an equitable sharing” of the benefits derived from those resources. There’s also a bit about the interests and needs of developing countries (the ones not actually doing, and paying for, the work) given special consideration. I’m not a raging capitalist but this bothers me.

Thankfully, this treaty doesn’t apply to Lunar Homestead as the U.S. never signed it. It may cause trouble for nations that did ratify it and now want to establish their own presence on Luna however.

Commercial Space Launch Competitiveness Act of 2015

Since the international community can’t seem to get it’s act together, let’s look at a few national laws.

This law (also known as the Spurring Private Aerospace Competitiveness and Entrepreneurship (SPACE) Act of 2015) came about because private companies in the U.S. wanted clearer guidelines regarding mining space resources than what the Outer Space Treaty provided. You can read the bill here (https://www.congress.gov/bill/114th-congress/house-bill/2262/text). I didn’t bother because it’s long and written in political/legal speak.

Here’s the highlights based on the Wikipedia article [74]:

  • “Explicitly allows US citizens and industries to engage in the commercial exploration and exploitation of space resources including water and minerals”. Whoot! This is exactly what we need.
  • “The right does not extend to extraterrestrial life, so anything that is alive may not be exploited commercially”. Not a problem. I would be astounded if we found native Lunar life. Might be more problematic for Homesteads in other places.  
  • However, the law then states that the United States isn’t asserting its sovereignty or ownership of any celestial body.  What? If the US isn’t doing that then how can the entities (companies, etc.) that are operating under it’s authority do so? This part of the act was the government’s way to cover its ass and not overtly violate the Outer Space Treaty. Some legal scholars claim that they did violate the treaty and now everything is in a legal grey area.

There are other things in the law as well but they aren’t relevant to Lunar Homesteading. The take-away is that any non-biotic natural resource a U.S. company or citizen finds, processes, or manufactures belongs to them. According to the U.S. government, not international law. This law is now being replicated in other nations (such as China, Luxembourg, Russia, Japan, and India) as well.

Encouraging International Support for the Recovery and Use of Space Resources (2020)

This isn’t a law; it’s a U.S. presidential executive order. An executive order basically allows the president to make laws without Congressional involvement and to modify existing laws to their liking. I honestly don’t know why such a thing is legal but it is. Anyway, that’s not the point of this section.

Anyway, President Donald Trump signed it in 2020 in preparation for the upcoming NASA Artemis Lunar landings (I assume). Here are the main points:

  • “Americans should have the right to engage in commercial exploration, recovery, and use of resources in outer space, consistent with applicable law.” – They sure should!
  • “Outer space is a legally and physically unique domain of human activity, and the United States does not view it as a global commons.” – Great!
  • “It shall be the policy of the United States to encourage international support for the public and private recovery and use of resources in outer space, consistent with applicable law.” – Yeah!

What does this all mean? Beats the heck out of me. It’s not a real law and it’s not an international treaty. I have no idea what kind of protection this thing will give anyone that wants to mine Lunar resources. It honestly seems more like showboating to me.

OK, so let’s see where all this leaves us.

  • Legality of establishing a Lunar Homestead (or any settlement): Unclear.
  • Legality of staking a claim to mine and use Lunar resources: Unclear.
  • Legality of Lunar land ownership for individuals, companies, Homesteads, etc.: Unclear.
  • Legality of ownership of extracted resources: Unclear.

Great. After all of this time and effort we still don’t have definitive legal protections for any space settlement activity. I guess the only way to get some things resolved is for a group to start up their Homestead and start extracting resources. Then the laws will just have to catch up. It will add risk that doesn’t have to exist; which will impact finding funding and creating the cis-Lunar economy. Hopefully, the politicians and lawmakers can get their act together and resolve this while we’re getting the tech ready. Then nothing will stop us.

Resources

70) disarmament.un.org/treaties/t/outer_space

71) disarmament.un.org/treaties/t/outer_space/text

72) en.wikipedia.org/wiki/Moon_Treaty

73) www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/moon-agreement.html

74) en.wikipedia.org/wiki/Commercial_Space_Launch_Competitiveness_Act_of_2015

75) www.whitehouse.gov/presidential-actions/executive-order-encouraging-international-support-recovery-use-space-resources/

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