A couple of years ago, a message from the Executive Director of the Space Settlement Institute was forwarded to the email list of a technical subcommittee of the American Institute of Aeronautics and Astronautics:
The Space Settlement Institute believes that the most valuable resource in space is Lunar and Martian real estate. The 1967 Outer Space Treaty prohibits any claims of national sovereignty on the Moon or Mars. But, quite deliberately, the treaty says nothing against private property. Therefore, without claiming sovereignty, the U.S. could recognize land claims made by private companies that establish human settlements there.
We think this is the key to promoting private enterprise in space.
Let's look at the SSI's first assertion, that "the most valuable resource in space is Lunar and Martian real estate." I wonder, have they taken a good look at Nevada lately? The first rule of real estate is, "Location, location, location!" Nevada may be in the middle of nowhere, but at least it has breathable air. The Moon and Mars are well beyond the outskirts of nowhere, and neither has breathable air. As for water and vegetation, Nevada is a veritable rain forest by comparison!
The next set of assertions pertains to property rights on the Moon and Mars. Here lies the fundamental flaw in their logic, which makes futile a major thrust of the SSI’s mission. It is true that, "The 1967 Outer Space Treaty prohibits any claims of national sovereignty on the Moon or Mars," and it is also true that "the treaty says nothing against private property." It does not follow, however, that "without claiming sovereignty, the U.S. could recognize land claims made by private companies that establish human settlements there."
As a matter of natural law theory, rights exist independently of their legal recognition; as Jefferson wrote, we "are endowed... with certain unalienable rights," but of course, governments are instituted to secure these rights. In anarchy, any rights that one might assert are purely theoretical, other than those one has the firepower to personally defend. So a practical matter, property rights exist only if they are granted or recognized by a government and subject to the protection of law. Such grant, recognition, or protection is an act of state, and as such is an exercise of state sovereignty. Title cannot come into existence out of thin air (or the vacuum of space). Legal title must arise from a sovereign power possessing legal authority over the territory in question.
Referring to the Space Settlement Institute's "Land Claim Recognition (LCR) Analysis:"
Congress should pass "land claim recognition" legislation legalizing private claims of land in space. A land claim recognition bill would not violate the ban on sovereign ownership if the "use and occupation" standard from civil law (rather than "gift of the sovereign" from common law) were used as the legal basis for the private claim.
This is a load of green cheese.
Article II of the 1967 Outer Space 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." Article VI of the Outer Space Treaty provides: "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, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty."
"Non-governmental entities" includes private parties; thus States Parties cannot appropriate the Moon and other celestial bodies, or parts thereof, through private parties.
For Congress to pass "land claim recognition" legislation legalizing private claims of land in space would be an exercise of state sovereignty, and therefore a violation of international law under the provisions of the 1967 Outer Space Treaty. Although I personally favor promoting private enterprise in space, and the development of an international legal regime for granting and protecting extraterrestrial property rights, I also deplore unilateral action on the part of the United States as an international outlaw. In my view, we have seen far too much of that in the past four years.
Meanwhile, the Space Settlement Institute appears to be yet another medicine show on the New Frontier.
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