Overview. The prospect of land acquisition in space would provide a major incentive for private corporations or consortia to invest, on their own accord, the billions needed to develop a reliable space transportation system and a permanent base on the Moon or other celestial body. The U.S. could pass legislation that would "recognize" (i.e., accept, acquiesce to, decide not to contest) a predefined-size land claim once a private entity has demonstrated both a reliable space transport system and sustainable base to the government's satisfaction. The development of the transport system and base could be overseen by NASA to ensure safety and to verify the criteria specified by the New Space Vision are met.

The specific way in which a space land claims recognition protocol could be integrated with the President's New Space Vision plan has not been determined. However, the basic characteristics such as protocol might have can be postulated. In fact, Mr. Alan Wasser, the originator of the land claims recognition concept, has invested much effort in the last decade researching the land claims recognition concept, investigating the implications, and resolving points of contention.

Most objections to a land claims recognition protocol as it would apply to the New Space Vision can be derived from one of the three assumptions implied by the concept:

• It would be legal for Congress to enact space land claims recognition legislation.
• Private entities are capable of building a space transport system and Moon base that comply with the criteria outlined in the President's New Space Vision.
• Private entities (such as corporations or consortia of corporations) would find the possibility of claiming land a very strong incentive for financing the billions in development costs for a space transport system and Moon base.

It seems clear that if each of these assumptions are true, then the overall space land claims recognition concept must be sound and should be considered for incorporation within the New Space Vision. The remaining sections of this document will consider each assumption, including objections to and objective evidence in support of each.

Determining the legality of enacting private space land claims recognition legislation primarily involves three considerations:

• Provisions of the major international space treaties
• Legal framework for land claims in space
• Obligations with regard to the international community

Each of these points are considered in detail below.

It is a widespread misconception that private land claims in space are forbidden by international treaty. The treaty usually cited is the 1967 "Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space," also known as the Outer Space Treaty. Land claims in space are addressed by Article II, which consists of a single sentence:

On careful reading, what is being said is obvious – that there are no allowable means by which a nation can appropriate land in space, whether by claiming a right of sovereignty over the land, by claiming that the government occupying or using the land implies ownership, or by any other mechanism. Nothing is said about private ownership, and for the framers of this treaty this was intentional. From Mr. Wasser's website:

Clearly, then, private land claims in space are not forbidden by the 1967 Outer Space Treaty.

One other significant attempt at defining the allowability of land claims in space that is sometimes cited against the concept of private land claims is the 1979 "Agreement on the Activities of States on the Moon and Other Celestial Bodies", known commonly as the Moon Treaty. Article XI of the Moon Treaty specifically forbids private ownership of property. Section three of Article XI states:

However, the Moon Treaty was in fact failed legislation and is for all practical purposes moot. The U.S. Senate refused to ratify the Moon Treaty, specifically because it attempted to ban private property. As Mr. Wasser describes,

From the standpoint of international treaty, then, private land claims in space are clearly allowable, assuming a proper legal framework can be determined.

The legal framework that fits the criteria a space land claims recognition regimen would require is the "use and occupation" standard from civil law. The standard of "use and occupation" as the basis for a land claim essentially means the claimants, having established a permanent presence on the land, in effect mix their labor with the soil and create property rights that are independent of government. This concept is distinguished from the concept of territorial sovereignty, whereby the government ultimately owns the land by decree or by default.

There is long-standing historical precedent for the use and occupation standard, which is derived from the Natural Law theory of government. In civil law countries like France, property rights have never been based on sovereignty (as they have in the U.S., which inherited the "common law" standard from the U.K.).

Natural Law's use and occupation standard must be used for any land claims regimen in space. As Mr. Wasser aptly notes,

The U.S. common law standard cannot be used since territorial sovereignty, the basis of common law, is specifically barred by international treaty.

In addition to international treaties and the legal framework, there is a third consideration with regard to the legality of private space land claims recognition legislation - the international obligations such legislation would need to address.

In particular, one such obligation required to achieve compliance with existing international treaties would be that a land claims recognition protocol must allow the space transport system and the permanent base to be open to all paying passengers regardless of nationality.

Why is this so? The Outer Space Treaty makes it clear that opening the space frontier must "benefit all mankind" and "access to all areas of celestial bodies must be provided." Article I of the treaty states,

Article XII spells it out in even greater detail:

All permanent facilities and land claimants would have to accept these rule unless the treaty is ever changed. As Mr. Wasser notes with regard to the "benefit of all mankind" language in the treaty,

In fact, actual participation by other nations in the land claims recognition protocol would also lend credence that these activities are in compliance with the "benefit of all mankind" requirement. The participation of space faring nations such as the European Union, Russia, Japan, and China would be especially desirable. Reciprocal agreements with other nations should therefore be encouraged in any land claims recognition legislation. The legislation could even direct the U.S. State Department to actively seek those agreements, and even negotiate treaties requiring the private entities to be multinational consortia to assure other nations that land claims recognition is not just an attempt at an American land grab.

That a private corporation or consortium could successfully construct a reliable space transport system and permanent manned base on the Moon or other body is relatively easy to demonstrate. The reasons include the breadth and depth of experience available through NASA and the major aerospace companies like Lockheed Martin, Boeing, and, just as significantly, NASA's own positive evaluation of the ability of private industry to solve highly-complex and technical space-related assignments as evidenced by NASA's proposed Centennial Challenge program.

Required consultation with NASA could be written directly into the space land claims recognition legislation, while private entities would almost certainly go to the aerospace companies for consultation on space ship and habitation designs. Given sufficient capital investment, any such private entity would be able to tap the accumulated expertise of NASA and the aerospace companies to help ensure plans are maintained within the parameter limits and mission requirements of the New Space Vision. Compliance criteria could be written by Congress right into the space land claims recognition legislation.

To solve the many challenges associated with shifting NASA's focus to the New Space Vision mandate of building a space transportation system for a return to the Moon, constructing a sustainable, permanent Moon base, and embarking on subsequent journeys to Mars, rapid innovations and technological advancements on an unprecedented scale will be necessary. Is private industry really up to such a challenge? Actually, NASA has already voiced a resounding "Yes!" to this question in the form of the new Centennial Challenges program included in NASA's FY 2005 budget.

According to the Exploration Capabilities section of the NASA 2005 Appropriation Summary, the Centennial Challenges program will reward private entities with annual prizes (on the order of a few millions or tens of millions of dollars, perhaps) for achieving "revolutionary, breakthrough accomplishments that advance solar system exploration and other NASA priorities...." The launching of this program by NASA clearly implies that NASA management believes private industry is fully capable of solving the complex problems that must be faced to implement the President's New Space Vision.

If private corporations or consortia are willing and able to solve, as NASA apparently believes, a range of complex technological challenges inherent in the New Space Vision roadmap, then by extrapolation there would be some private entities willing and able to step up to the larger, overarching challenge of developing a space line and permanent Moon base – provided they have a great enough incentive, such as the multi-billion dollar return on investment a space land claims recognition protocol would make possible.

Like the space land claims recognition protocol, the NASA Centennial Challenges program requires up-front private innovation, investment, and actual implementation as a prerequisite for receiving the award. As stated in the FY 2005 NASA budget,

The Centennial Challenge program conceived by NASA is a very positive step toward attracting more involvement from the private sector in solving the technical challenges of the New Space Vision, but consider the broad and intense interest from private industry if a multi-billion dollar reward were at stake. A space land claims recognition protocol would offer the biggest Centennial Challenge of all, for the biggest achievement of all – and without costing the taxpayers a cent.

In exchange for the enormous risk and cost they would shoulder to finance the development and implementation of a space transportation system and permanently-manned base on the Moon or other body, private corporations or consortia would require a correspondingly huge profit potential. Fortunately, a space land claims recognition protocol could be enacted that would turn what is currently worthless - i.e., land on the Moon and other celestial bodies - into a vast source of wealth, both immediately upon completion of the task of implementing a space line and permanent base and far into the future.

As Mr. Wasser notes,

The concept of obtaining land as an incentive is nothing new, of course. For centuries, governments have used the enticement of land to draw explorers and settlers into new and potentially hostile lands. Due to current provisions of international treaty, land grants in the traditional sense cannot be used to convince private corporations to develop space transport systems and manned bases, but a land claims recognition protocol would trigger the same mechanism. As Mr. Wasser puts it,

In fact, much of the U.S. was developed through the use of the land grant concept, from large portions of the original 13 colonies through the settlement of the West. For example, not wanting to use government funds, Congress instead used land grants to encourage the building of the transcontinental railroad system.

A land claims recognition protocol would actually have a huge advantage over the land grants that were used to build the railroads. To convince an individual or corporation to risk building a railroad, that person or company usually had to be given a monopoly over the right of way before they had proven they could even build the railroad. In contrast, with land claims recognition in space, the private entity must first prove they can come through, by implementing a space transport system and a manned base before the government would recognize the private entity's land claim.

However, proposing that private entities could sell or mortgage the land on their claim to recoup their investment and reap a huge profit begs the question of how much a land claim would be worth. In other words, could obtaining Lunar land, for example, really be worth enough to pay back corporations or consortia for their investment?

For the possibility of claiming land on the Moon to be an impelling incentive for a private corporation or consortium to invest billions of dollars and years of time and effort in a risky venture like developing a space transport system and Moon base, the mechanism by which the land claim could be converted to a multi-billion dollar profit must be both straightforward and proven.

In current debate, many space advocates propose that mining for minerals and water, collecting solar energy for transmission to Earth, space tourism businesses, and other such activities will provide property on the Moon (especially the most desirable locations) its value. However, consider for a moment where the greatest profits on land are being made today, here in the U.S. Far and away, beyond farming, mining, or urban development, the most profits are made on U.S. land as something to speculate on or invest in. In point of fact, most Lunar land in a recognized claim would be put to immediate profitable use in just that manner by the private entity who owns the claim.

Private entities could expect to be able to sell or mortgage vast portions of their land claims tracts with relatively little difficulty. As Mr. Wasser notes,

Through land sales to the broad market of speculators and investors, the private entities will recoup their own investment and collect their profit – assuming, of course, that the value of the land is sufficiently great. One might wonder as well whether, to ensure profits in advance why the private entity should not be allowed to make a land claim "ahead of time" (perhaps immediately after committing to build the space line and Moon base) so investment capital for the project could be generated up front.

The reason, of course, if that the land is in reality worthless (and speculators and investors know this) unless and until people can actually go there. Mr. Wasser summarizes it this way:

When the point in time is reached when land speculators and investors on Earth realize the Lunar land is real, tangible "land in the sky," the U.S. and global investment and speculative markets will sit up and take notice.

How much might the land be worth once a transport system and sustainable base are established? Using some simple calculations and a few basic assumptions, an idea of the value of a land claim on the Moon for example can be estimated.

The surface area (SA) of a any sphere (like the Moon) is given by the following formula:

SA = 4p R²

where R equals the radius of the sphere and p is the constant value "pi" (approximately 3.14).

Since the Moon's mean radius is about 1,080 miles, the surface area of the Moon is:

SA = (4)(3.14)(1080)² = 14,649,984 square miles

Given that one acre equals 0.001562 square miles, the number of acres on the Lunar surface is about:

14,649,984 / 0.001562 = 9,378,991,037 acres

How much could the 9.38 billion acres of land on the Moon be worth? For the sake of argument, assuming the value was only $20 per acre, the value of the land on the Moon can be estimated at:

9,378,991,037 acres x $20 per acre = $187,579,820,740

The result is almost $200 billion, even using an extremely low estimate of the value per acre. In fact, consultation with real estate experts has revealed that perhaps $100 per acre would be a realistic but very conservative minimum for U.S. government recognized deeds to Lunar property. At $100 per acre, the value of land on the Moon becomes $937,899,103,700 – almost a trillion dollars. Can there be any doubt such huge sums would not be a strong enticement for a private corporation or group of corporations, even given the risk?

Assuming the estimate above for the value of land on the Moon is reasonable, the U.S. would need only recognize claims up to a predetermined size to still afford the private entity who developed the space line and permanent base an enormous profit. How large of a claim to recognize would be up to Congress to decide, presumably. However, one approach would be to encourage competition between private entities to be the first to develop a space transport system and Lunar base. So the efforts of the "second place" group do not go unrewarded, the first group could be allowed a portion of the Lunar surface – enough to repay their investment and earn a huge profit – while subsequent entities could claims successively smaller amounts of land.

To illustrate, for many years Mr. Wasser has been proposing that the U.S. recognize claims of no more than 4% of the Moon's surface (around 600,000 square miles, or about the size of Alaska). That amount of land would be worth about $40 billion, even at the modest estimate of $100 per acre. The second place group, if and when one were able to also develop a transport system and manned base might be allowed to claim 15% less land than the first group, the third group 15% less than that, and so forth.

As mentioned earlier, to receive U.S. recognition for a land claim the private entity would need to develop a reliable, government-approved space transport system as well as a sustainable base on the Moon or other body.

Additional conditions could also be stipulated. As described above, an appropriate limit to the amount of land that can be claimed could be set. Also, the representatives of the entity would be required to behave according to international norms, and the base itself should be a open to all and prohibit anti-competitive behavior. Regulations might even be put in place for protection of historical sites or other areas of special importance.

Another consideration might be to require that only a certain percentage of land sale revenue be used to repay the cost of establishing the base, the balance being reserved to support the base itself until ways can be found to earn enough for self-sufficiency.

A private space land claims recognition protocol that would unleash a flood of private sector investment in the New Space Vision is certainly viable, as evidenced by the discussions above supporting each of the underlying assumptions. Clearly, a space land claims recognition protocol would:

• Be legal under international law.
• Leverage the recognition that private entities are technically capable of developing a government-approved transport system and permanent base.
• Provide a very strong incentive for private industry to pay for the development and implementation of a space transport system and base.

As everyone is aware, the financial costs of returning to the Moon and then going on to Mars will be enormous. The more that tax money and government allocations are relied upon, the more likely that someday in the future Congress may weigh the scales and decide to divert funds to other programs or purposes. That is why a private land claims recognition protocol for space must be incorporated into the President's New Space Vision plan.

Making private industry a major player and financier by integrating competition, the profit motive, and free enterprise into the New Space Vision promises to lend a stability and long-term sense of assurance that the President's Vision will be implemented. Why? The answer is that in rare ventures where private industry has both a worthy and exciting challenge coupled with the opportunity to reap undreamed-of profits, they have always exhibited an unstoppable determination to accomplish the objective.

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