Property Rights on the Moon

The ‘Outer Space Treaty’ was agreed by the United Nations in 1967 and was largely based on the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, a United Nations resolution adopted in 1962. This outlined that the exploration of outer space must be in the interests of all countries and people, should be free for exploration as well as used by all, and should not be subject to national appropriation. It continues that states should not place weapons of mass destruction in orbit and that the Moon and other celestial bodies should be used for peaceful purposes, states should be responsible for activities (whether governmental or not), and are liable for damage caused, but should avoid harmful contamination of space. This could be considered rather visionary given the extent of space exploration at that time.

In July 1969 Neil Armstrong became the first man to walk on the moon, and since then, the Moon has remained largely untouched as there have been no landings subsequent to 1972. The situation is now changing. In late 2019 the Chinese ‘Chang’e 4’ landed on the far side of the moon, then in December 2020 ‘Chang’e 5’ landed and returned to Earth with lunar samples, and ‘Chang’e 6’ is anticipated to launch in late 2024 with the intention of collecting samples from the far side of the Moon. Equally, Japanese firm iSpace has launched a program known as Hakuto-R which aims to land on the moon in the near future, and ultimately investigate water resources on the Moon. This reflects a resurgence in interest in the Moon, and in particular, further investigation as to what might be present there. It is known that the Moon does possess resources that are needed on Earth: iron, titanium, aluminium, silicon, calcium, and magnesium, although, whilst the potential for the use of these has been realised, the practicalities of actually doing this, perhaps less so. However, the matter remains controversial, and up to date, other than a stated interest from the Trump administration, little has been done to turn the vision into a reality.

Enlightenment philosopher John Locke (1632-1704) outlined his belief in property rights as forming a part of natural rights. Natural rights are those not dependent on law, culture, or a particular government. This stemmed from his belief that the fruits of an individual’s labour belong to that individual as they worked for it, and they hold a natural property right in the resource as exclusive ownership was necessary for the ‘thing’ to be produced. Organisations like the American ‘Planetary Resources’ sought to develop technology for asteroid mining. Many have described the ‘boom’ in the potential of asteroid mining in the early 2010s as having largely faded away, with comparisons between the rhetoric surrounding it and the nineteenth-century Gold Rush being drawn. Whilst this ‘new frontier’ may have failed at the moment, the issue has forced governments to re-consider property rights in space. Therefore, it is no surprise that the US passed the Commercial Space Launch Competitiveness Act in 2015 which outlined the right of its citizens to own the resources they manage to mine from asteroids, something described by the co-founder of Planetary Resources, Eric Anderson as the “greatest recognition of property rights in history”. Other countries, notably Luxembourg, passed similar legislation with the Deputy Prime Minister at the time, Etienne Schneider, stating this would make the country a “pioneer and leader in this sector”. Whilst Luxembourg is not noted for conducting a great deal of space exploration, Schneider’s personal interest in space, and its exploration is clear both from organisations he is associated with and on his social media. However, such a positive attitude is not shared by all, as many are uncertain as to whether the notion of all nations as ‘equals in space’ will be maintained. Much attention was drawn to the issue with the ‘Artemis Accords’ of October 2020 produced by NASA which outlined their intention for an American-led effort to return humans to the moon by 2025.

The ‘idealism’ of the 1967 Treaty has not been overlooked, its vague nature has led to a number of issues regarding property rights in space, particularly on the Moon. For example, in the 1980s, Dennis Hope noted a loophole in the Treaty that failed to prevent individuals from declaring the sovereignty of the Moon, only nation-states, and since then he has been selling deeds to plots on the moon through the ‘Center of the Lunar Embassy’ which can be purchased from $24.99-$499.80. The website claims to have sold 5,000,000 of these, although, many experts in the sphere do not regard him as being the sole owner of the Moon.

Some groups like the ‘Adam Smith Institute’ have called for a system to assign and govern property rights, arguing benefits to this like financial rewards for those who become owners, as well as incentives for responsible maintenance of ‘society in space’, the potential for discoveries, and how space could be ‘democratised’. In their research paper ‘Space Invaders’, they argue for the classical liberal Lockean approach to this due to his rights-based approach which outlines the ‘state of nature’ in which things are not individually held (although there is disagreement as to whether these are ‘commonly owned’ or simply ‘unheld’). If individuals wish to acquire them, they must do so in a morally justified manner. This approach also outlines that individuals can acquire non-human and external things, provided they meet certain conditions. This section of the report ends with the statement that “it seems clear Locke holds that an extensive regime of private ownership is essential to a society that fulfils its potential”, at least in terms of prosperity. This proposal has been met with criticism, especially from those who suggest this is simply a continuation of what we have seen on Earth, and many commentators highlight social issues faced internationally. In a reflection of these problems, ‘Oxfam’ recently published its ‘Inequality Kills’ research paper which outlines how issues have worsened since the beginning of the COVID-19 pandemic which has widened inequalities, particularly between countries, but economic, gender, and racial ones too. It places the blame of this upon ‘economic violence’ which stems from policy choices that suit those who are wealthiest in society (the report emphasises that the wealth of the ten wealthiest men has doubled since the start of the pandemic) and it argues that economies need to redesigned to be centred on equality (such as through progressive taxation, public measures, and shifts in where the power lays) in order to prevent wealth inequality from worsening. If property rights in space follow the same pattern as those on Earth, the opportunity to improve matters would be lost.

Attention has also been drawn to the ‘Doctrine of Discovery’, a concept of international law outlined in United States Supreme Court cases, notably Johnson v McIntosh (1823), (the ruling of which stated that private citizens could not purchase land from Native Americans- as they only had a ‘right of occupancy’ as the federal government now controlled the land) similar to the manner by which colonial powers claimed lands during the Age of Discovery. European and Christian governments simply claimed non-European and Christian territory on the basis they ‘discovered it’ and the ruling has been used since to invalidate native land claims internationally, essentially arguing that such places did not have inherent property rights. Such ideas are widely no longer accepted in many modern societies, with Justice John Marshall’s ruling being subject to condemnation today. However, the lasting legacy of the Doctrine of Discovery has been noted as a cause of modern imbalance between nations, and the UN was called in 2012 to investigate the issue. Given, the lack of laws in space it is worth considering that whilst there may be an International Tribune for Law of the Sea, no such thing exists for laws in space. The International Court of Justice may play a role, but some nations are noted for already keeping a distance from this organisation. This becomes problematic as the nations in the position to lay claim to celestial bodies are going to be the more developed, powerful nations that are better placed to have extensive space agencies, which will limit the role of smaller nations in benefitting from the future possibilities.

The 1967 Treaty may prevent this from happening for now, but the rapidly changing nature of human attitudes towards space means this will likely need amending or simply replacing by a new document which might change the nature of the issue entirely. However, with governments already heavily investing in exploration with an eye to future economic and political gain, the hope of something as visionary as the original 1962 declaration, is not particularly great: something resembling the ‘Center of the Lunar Embassy’ is more likely.


Written by Frances Rigby


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