Can There Be Real Estate on the Moon?

A Harvard-Smithsonian astrophysicist thinks a legal crisis is waiting for us on the surface of the moon.

For Sale the Moon
An astrophysicist makes the case that it might be worthwhile to revisit the Outer Space Treaty of 1967 to safeguard the practice of science on the lunar surface. Background Image: NASA; istock/Feverpitched

The idea of arguing over real estate on the moon may seem silly—like a con man trying to sell a tourist the Brooklyn Bridge. But in a new paper, co-author Martin Elvis, an astrophysicist at the Harvard-Smithsonian Center for Astrophysics, makes the case for society to start thinking carefully about lunar real estate before a crisis is thrust on us.

Most of the surface of the moon doesn't seem worth fighting over. One piece of lunar land looks as good as any other right now. But there are some exceptions—the peaks of eternal light. It is in these locations that Elvis suggests that scientific research could potentially be seen, or even used, as a land grab.

“The peaks of eternal light are highland regions near the lunar poles that receive sunlight virtually all of the time,” wrote Elvis (the lead author) and his co-authors, philosopher Tony Milligan and political scientist Alanna Krolikowski. Combined, the peaks comprise only about a single square kilometer of the lunar surface. These narrow crater rims are especially valuable for two purposes.

First, they offer a constant source of solar electricity. This would allow any lunar facility, manned or unmanned, to reduce weight and launch expenses. Without a source of constant sunlight, “you've got to have huge amounts of batteries and thermal insulation,” Elvis says. “That's a lot of mass to take into space. It's a real enabler to allow expeditions to start making use of the water down there [in the dark corners of craters nearby]. The industrial revolution started because there was iron next to coal... So when you have a power source next to a resource is where you start to develop some industry. If that's going to happen on the moon, its going to happen there.”

Peaks of Eternal Light
In an image taken by the Selene space probe in 2014, four points on the moon's southern pole are identified which receive lighting more than 80 percent of the year. The Malapert Mountain peaks can be seen from Earth. Wikimedia Commons

The second use for the peaks of eternal light would be as sites for radio telescopes. A radio observatory in such a location would allow the sun to be studied without interruption, improving the ability to analyze solar data. A long wire would be stretched out along the crater rim, running at least 100 meters. This could be done on an unmanned mission. “If you have a rover, all you have to do is un-spool a copper wire as you move along,” says Elvis. “It doesn't have to be perfectly straight. I don't see any technological barrier to this happening in the next few years.”

In fact, there are several players planning lunar missions in the next few years who could make a play for the peaks of light. China successfully landed its Chang'e 3 spacecraft on the surface of the moon in 2013 and plans to land Chang'e 5 in 2017. China has an aggressive and successful lunar program that is capable of putting a radio observatory on a peak of light within the next few years (currently none of their mission profiles include this goal).

A host of competitors for the Google Lunar X Prize also may be capable of getting to one of the peaks first. SpaceIL, an Israeli non-profit, has already paid its deposit for a 2017 launch date on a SpaceX Falcon 9 rocket. SpaceIL has not publicly announced its intended landing site.

So what happens when someone lands on a peak? Can they make a claim to ownership? This is where things get tricky.

The history of space law begins with The Outer Space Treaty, which was negotiated primarily between the United States and the Soviet Union and ratified in 1967—104 countries are now parties to the treaty.

Article Two of the Treaty states: “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.” This means that there isn't supposed to be any planting of a flag and claiming a land for any king or country. NASA can't call a peak of light part of the United States. China, also bound by the treaty, shares the same limitation as they explore the moon.

If a country can't claim lunar land as sovereign per se, can they still reap any defacto benefits of sovereignty? Elvis proposes a loophole in the treaty that could be enabled by the peaks of eternal light.

Article Twelve appears to take away the possibility of exclusion of others from a piece of lunar property: “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. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited.” In other words, this article declares that you have to let other nations visit your moon base.

So, if you can't make other people stay off of your real estate, is it really yours? Setting up a radio telescope on a peak of light, says Elvis, might provide the legal loophole that would allow governments to cheat on Article Twelve.

Approaching the antenna of a radio telescope would cause electrical interference that disrupts the “normal operations” mentioned in the Treaty. If the observatory is making uninterrupted observations of the sun, then there is no down-time during which a visitation could occur.

“Effectively a single wire could co-opt one of the most valuable pieces of territory on the Moon into something approaching real-estate, giving the occupant a good deal of leverage even if their primary objective was not scientific inquiry,” wrote the paper's authors.

Setting up a token radio observatory could establish a claim that allows a country to put the property on hold until they are ready to set up a solar power station which could power a mining operation in search of water or helium 3.

The Outer Space Treaty was negotiated and promoted as a nuclear non-proliferation treaty. During every conversation mentioning the treaty that was recorded by then-President Lyndon Johnson, it was discussed in those terms without ever mentioning commerce or real estate. “We believe it would have a benefit throughout the world and contribute to an easing of tension,” Johnson said to his aides at a time when the potential for nuclear war was at the top of everyone's concerns.

On December 9th, 1966, the New York Times wrote that “Mr. Johnson, in a statement from his ranch issued through the White House office here, described the agreement at the United Nations as 'the most important arms control development' since the 1963 treaty on a limited test ban.”

Therefore, the visitation requirements established in Article Twelve are probably best understood as an inspection scheme intended to prevent nuclear launch systems or other weapons from being constructed in space and in violation of the Treaty. This invites a closer look at whom this treaty really applies to.

Governments that signed on to the treaty are certainly bound by it, but what about SpaceX, SpaceIL or any other private individual, corporation or non-profit?

Article Six of the Treaty states in part: “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities. . .” This makes it clear that the Treaty differentiates between state actors and non-state actors. When the treaty means states, it says states. While it says that a state cannot claim sovereignty over territory in space, it does not say that non-governmental entities are prohibited from establishing non-sovereign ownership of real estate. (Dr. Elvis respectfully disagreed with this interpretation of the Treaty, but said that he had not considered it previously.) 

What NASA or the European Space Administration cannot do, a corporation might.

The literature on property law in space is scarce. Real cases regarding involving land beyond Earth have yet to occur, so there is no case law to examine. But in 1969, Stephen Gorove argued in the Fordham Law Review that under the Outer Space Treaty, private property beyond Earth is legally possible.

Gorove wrote: “...The Treaty in its present form appears to contain no prohibition regarding individual appropriation or acquisition by a private association or an international organization, even if other than the United Nations. Thus, at present, an individual acting on his own behalf or on behalf of another individual or a private association or an international organization could lawfully appropriate any part of outer space, including the moon and other celestial bodies.”

“It is important to keep in mind that, with certain exceptions, international law permits what it does not prohibit,” says Robert Turner, associate director of the Center for National Security Law at the University of Virginia.

“Which is to say that States do not need to show that a treaty authorizes what they wish to do with respect to the external world, but rather States can do as they wish unless they have agreed by treaty or through longstanding customary practice accepted as law (opinio juris) not to do what they now wish to do—or has established a duty to behave in a certain manner.”

In other words, anything that isn't specifically banned by custom or treaty is generally allowed in international law.

If states have not explicitly agreed to deny their citizens the right to claim exclusive mining resources or peaks of eternal light for commercial purposes, perhaps that right still exists (Turner did not endorse any specific opinion on private ownership of land in space).

Turner suggested that any ambiguity in the Outer Space Treaty could inhibit commercial exploitation of space. “In some settings, ownership rights must be settled before commercial enterprises are likely to invest in the technology to exploit resources,” Turner says. “For example, as long as Canada and the U.S. failed to agree on the dividing line between the two countries in the Gulf of Maine, an American energy company that sought to extract oil from the continental shelf in the disputed area ran a risk not only of later learning they were extracting Canadian oil and had to tear down their machinery—but also of owing Canada for the value of any oil extracted during past years. So both countries turned to the World Court to establish a boundary line.”

Elvis avoids coming to any definitive conclusions about the future of real estate on moons and asteroids. He just wants us to think about it and start making decisions before they are made for us. “What I'm trying to do is make a discussion and make it more real, based on the non-uniformity of the resources,” says Elvis. “I hope there will be either a revised treaty or a revised version of this treaty that makes space worthwhile.”

Every space-faring nation is now a party to the Outer Space Treaty, with the exception of Iran. The Iranian Space Agency has their own launch system which has successfully launched Iranian-built satellites into orbit. Iran does not have boosters capable of reaching the moon and currently has no plans to do so. Other countries can pull out of the Treaty by simply giving 12 months' advance notice.

Elvis worries that trying to get out ahead of a rival within the Treaty could eventually backfire on us. “Suppose we say 'we can't let the Chinese do it first, let's do it ourselves!' Then we've set a precedent that a state can use scientific research as a pretext for grabbing property on the moon… we may not want to set off that kind of scramble. . . .If we set a poor precedent, thinking we can grab it, that could rebound against us.”

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