Statement of the Party of the First Part
In the process of doing some self-education, I have been listening to the Space Show archives when I came across the show where you were interviewed. You gave this e-mail address and requested listeners to contact you if they wished.
As we get closer to returning crew to the moon, I think that there could be a long-term problem if the groundwork isn't set properly from the start.
It could be that functional ownership would work well for a long time. But eventually there will be enough people living on the moon in interdependent relationships that they will want to become politically independent. But if there were not clear rules set down from the beginning then there could be competing territorial claims based upon past historical use. We see this problem all the time such as the dispute in the South China Sea. It seems very difficult for neighboring countries to resolve border disputes between themselves even over a period of decades. These disagreements can results in conflict and bloodshed.
So here is what I would propose be done before people start investing in and establishing claims on the moon. I would like to propose that the borders for future lunar countries be established before anybody arrives. In that way, anybody who goes to the moon and anybody who spends money developing resources there will have no excuse. They knew what they were investing their resources into and so they don't have any place to complain when that section of territory becomes independent.
Like the Northwest Ordinance, we should set a well-defined population level at which people living in the territory would be free to vote their own form of government however they wish. However, any assets that they nationalize will have to be compensated at fair market value.
With this approach, everybody going to the moon will understand that they will have to make their own best guess as to the future outcome. If they guessed incorrectly then they may end up living within a country that they don't like. However, they still can't complain because all they would have to do is look around at their neighbors and guess as to what form of government their neighbors will vote for.
The advantage of this approach, is that people desiring a similar type of future government can tend to congregate with each other and would be motivated to develop their own country. A libertarian government is one obvious example. But there would be others. Certain (polar) countries would have better resources than others and so this framework could accelerate the development of those countries.
Now, I recognize that any treaty laying the boundaries of future lunar countries is so far in the future that it may be difficult to establish a treaty or such which would define those countries. However, I'm wondering if this process and those boundaries could be formally or informally set so that as the problem grows, people will keep referring back to the proposal made from the very beginning that, if it had been adopted then, would prevents the problem. So, it might develop a retrospective authority.
I'm no lawyer and I understand that this idea is probably a bit far out there, but I wanted to run it past you to get your thoughts.
Statement of the Party of the Second Part
I believe that nearly all space law scholars agree that the law needs to
be developed further, and that is what we try to do. If there were no
need to develop the law further, there would not be much to space law
beyond contracts and liability, and I would be looking for a more
interesting field of intellectual endeavor.
Pursuant to Article II of the 1967 Outer Space Treaty, claims are
prohibited. The purpose of this principle is to prevent the types of
conflict you describe. What is permissible in international law is to
reduce natural resources to possession by the act of removing those
resources from their place. Thus, the U.S. Commercial Space Launch
Competitiveness Act of 2015 is consistent with U.S. international
obligations. Another principle of international law, found in Article
IX, is that "States Parties shall conduct all their activities in outer
space, including the Moon and other celestial bodies, with due regard to
the corresponding interests of all other States Parties to the Treaty."
The same article also addresses a duty not to cause "potentially
harmful interference" to the activities of another State Party. From
this, some believe that there is in principle a limited zone of
exclusive control during a space activity which could (and should)
evolve in international law. Specifics that need to be worked out
include the territorial extent of the zone, which may vary with the type
of activity, and the duration of the zone, which would expire some time
after the activity ceased.
Since claims are prohibited, one owns only what one brings, builds, or
the natural resources one removes. Investment should be attracted on the
basis of an entity's technical ability to obtain the resources, not on
claims. Since there is a duty to conduct activities in outer space with
due regard to the corresponding interests of others, and not to cause
potentially harmful interference, what is the point of a claim? What
matters is getting to a place first.
The problem with a claim is determining what is the registering
authority. A U.S. entity, a Chinese entity, and a Russian entity might
well register competing claims with their respective governments,
setting up a scenario for conflict. An international authority might be
established, but competing geopolitical interests would likely drive its
internal processes... it might deny a claim simply because "too many"
U.S. entities already had established claims and "not enough" Russian
entities had established claims.
On what basis would the Moon be divided? Combining the "common heritage
of mankind" doctrine with the basic principle of international law that
all states are equal leads to a thesis that each nation on Earth has an
equal, undivided interest in the Moon and other celestial bodies. A lot
of people in developed countries have philosophical heartburn with that
idea. The problem with dividing the Moon into national territories
(future countries) is that it would force this issue. The only way that a
state could be assured of having an equal share of benefit from the
Moon, were it to be divided, would be to own and to have sovereignty
over an equal division, whereas it is exceedingly unlikely that all
states would agree to "quit-claim" their interests in the Moon. If an
international authority were to divide the Moon, it would be legally
obligated to do to on the basis of equality. Well, what is equal on a
heterogeneous body such as the Moon? It is likely that each territory
would need to have not only the same geographic area, but the same
proportions of maria, uplands, near side, far side, polar ice, et
cetera. That would be 193 equal slices of the Moon, possibly more if the
Holy See and the Palestinian Authority were to be included, and it
likely would tax the talents of an Elbridge Gerry to draw that many
contiguous territories containing all of the necessary
proportionalities.
In any case, the Kingdom of Tonga (where I currently reside), a nation
of 100,000 people, would be entitled to as much of the Moon as the U.S.
This leads to the next problem. So the King of Tonga now owns a slice of
the Moon. Oh, very nice, except that he hasn't the means to use that
claim. Of course, Tonga could lease sections of its claim to other
entities, just as Tonga leased its licensed positions in geostationary
orbit to foreign interests. This is an example of rent-seeking, a term
in economics and in public-choice theory, which involves seeking to
increase one's share of existing wealth without creating new wealth.
Well, we want to create new wealth, and to my knowledge, no one has come
up with a more efficient economic model for doing that than "first in
time, first in right." I don't see a logical tie between creating the
boundaries of territories and encouraging investment. What matters to
investors is certainty in the rule of law that ensures property rights.
Why should we divide the Moon so as to provide the basis for future
nation-states? Nation-states formed in 17th century Central Europe in
response the security competition occasioned by the decline of the Holy
Roman Empire; in creating new nation-states from artificial boundaries
in the 19th and 20th centuries, the former colonial powers of Europe did
a damned good job of perpetuating security competition all over the
Earth. Why would we want to repeat that mistake on the Moon?
I hope that someday there will be populations in outer space that are
desirous, deserving, and capable of political independence. However, I
don't see how a Russian sector or a Chinese sector on the Moon would be a
step toward that goal. When was the last time that Russia or China
granted independence to anyone? Ask the Chechens or the Uyghurs how well
that is working out for them.
Scholars have been writing on the sociology and governance of space
settlements at least since the 1970s, so there is quite a body of
literature. I am not that familiar with it yet, but I plan to begin
familiarizing myself next year, as it is a subject that interests me,
but for now there are more immediate legal problems that I am working
on. In my study of space law, I find examples of our doing too little
too late, and there have been times when we have tried to do too much
too soon. As usual, wisdom lies in being able to see the middle way. We
can offer the future the benefit of our best present thinking, but we must not
remove from the future options which may contain little potential for
evil. As in medicine, first we must do no harm.
