In our view, Article VI of the 1967 Outer Space Treaty clearly does not prevent the recognition by nation states of private claims of celestial land that are based on use and occupation. This despite arguments to the contrary by some in the space community.
From Article VI:
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.
Some have argued that the provisions in this article preclude the possibility of private appropriation of land on the Moon or Mars. For example, Jim Dunstan interprets Article VI this way:
Since launching states are required to ensure that their nationals conduct activities in conformity with the provisions of the Outer Space Treaty [per Article VI], and the OST denies states the ability to appropriate celestial bodies through use and occupation, or by any other means [per Article II], there is no way that the United States could directly recognize land claims in outer space.
But that argument contains an error in logic that was refuted years ago in a respected journal of aerospace law as well as in a law school textbook on international law.
Certainly, launching states must ensure that their nationals' activities conform to the provisions of the treaty, and Article II of the treaty includes a prohibition on national appropriation of territory or claims of national sovereignty. Launching states must therefore prohibit their citizens from making claims of "national sovereignty" or "national appropriation" on their nations' behalf.
But the requirement that nations must make sure their citizens do not violate the treaty has no bearing on private lunar land claims based on natural law’s "use and occupation", for the simple reason that private ownership (i.e., ownership not based on sovereignty) is not prohibited by any provision of the treaty.
More bluntly: there is no provision in the Outer Space Treaty specifically barring claims of private ownership, so recognizing a private claim based on use and occupation does conform to all the provisions that are actually in the treaty.
Counterarguments that refute Mr. Dunstan's opinion on Article VI have appeared in both Southern Methodist University Law School’s Journal of Air Law and Commerce, (Volume 73, Number 1, Winter 2008) and in the law school textbook from Westview Press: "International Law", Silverburg, ed., (ISBN 978-0-8133-4471-3). Specifically:
...the treaty clearly does not contain any language explicitly saying that states may not authorize their citizens to do anything that they themselves cannot do. The treaty does not say that what is prohibited to states is therefore prohibited to private entities nor that what is prohibited to the regulator is therefore always prohibited to the regulated.
A baseball coach gives "authorization and continuing supervision" to his players. Does the fact that the coach is not allowed to run onto the field to catch a fly ball mean the players he supervises cannot either?
There are plenty of long-standing precedents demonstrating actions that the U.S. itself cannot perform legally, but which it can authorize its citizens to do and can recognize when they have done so, such as adopting a particular religion, numerous trade and commercial activities, getting married... [and so, similarly,] claiming land on the Moon on the basis of use and occupation.
...If the framers of the Outer Space Treaty had intended to mean that States may not authorize their citizens to do anything which they themselves cannot do, [such as claiming land] they would have written such language into the Treaty explicitly. However, the framers... deliberately required only undefined "authorization and continuing supervision" and compliance with the Treaty.
Declassified U.S. State Department records of the treaty negotiations... show they imposed only that nominal burden on private enterprise in space [because] the Americans, adamantly opposed to the Communist proposal to ban all private enterprise space activity, stood fast until the USSR agreed to those substantially meaningless face-saving formulations.
The phrase "carried out in conformity with the provisions set forth in the present Treaty" means just what it says. It requires that non-governmental entities abide by what is in the rest of the Treaty. Other than this phrase, the article does not add any new provisions.
[Since no other part of] the Outer Space Treaty contains any provision that bans private property in space,... then "carried out in conformity with the provisions set forth in the present Treaty" cannot be re-interpreted as a ban on private property either.
You can read much more about why the proposed law would not violate the OST, and the entire footnoted article, here on the Space Settlement Institute's website.
Keep in mind, this counterargument was vetted and selected for publication in one of the most prestigious journals of aerospace law and then again by the law professors on whom Westview Press relies to edit their law school textbook on international law.
In addition, on April 14, 2012, University of Tennessee law professor Glenn Reynolds, whom many consider the leading authority on space law, and who literally co-wrote the book on the subject posted the following on his blog:
I disagree with the thesis that because Article 2 of the Outer Space Treaty requires nations to supervise their nationals, it somehow bans private property. And I think that the later drafting of the failed Moon Treaty - which did explicitly ban private property - was an admission that the Outer Space Treaty didn’t. Furthermore, there’s precedent for the U.S. recognizing property rights in areas where it doesn’t, and can’t, claim sovereignty.
Finally, it is also worth noting that the US need not be the "launching state" and need not act unilaterally. Space settlement is such a big undertaking that it will probably be a multinational effort, and the proposed legislation contains several provisions designed to get as many other countries as possible to join in extending reciprocal recognition.
As Rand Simberg explained in his excellent report Homesteading the Final Frontier: A Practical Proposal for Securing Property Rights in Space,
...the law would require that the U.S. court system recognize the claim of, say, a corporation chartered on the Isle of Man with investors from Dubai. To say that such a recognition amounts to a 'national appropriation' by the U.S. of the legal real estate established with such a claim is plainly absurd.
It would be even more absurd to say the US was guilty of "national appropriation" if it were one of ten Outer Space Treaty signatory countries to recognize a private property claim by a settlement company headquartered in Qatar, Monaco, Liechtenstein, or Costa Rica, with a launch site on the coast of Suriname ( just 100 miles from the Kourou launch pad in French Guiana). None of those countries have signed or ratified the Outer Space Treaty so the "launching state" would not even be a party to the treaty.
No government can own the Moon, so no government can grant it to anyone. But once there really are people living on the Moon permanently, THEY can lay claim to private ownership of the land around them.
The fur-trading settlement established by the private for-profit Shelikhov-Golikov Company on Kodiak Island in 1784 made a private claim to the 600,000 square miles that are now Alaska. Russia and then the world recognized that claim, and, in 1867, the U.S. government paid the then-huge sum of $7,200,000 for it. It is proposed that private Lunar land claims be limited to that size, 600,000 square miles, based on that precedent.
As they did with Shelikhov's claim to Alaska, the US and the world can recognize the Lunar settlement’s claim (at zero cost to the US government or taxpayers) and allow the settlers to sell parts of the claim to buyers back on Earth to recoup the investment that enabled the settlers to get there.
Note: The first 25 FAQs below are reprinted from the Space Settlement Initiative website.
What is the real purpose of enacting a Lunar land claims recognition law?
Will promising property rights be enough to produce the necessary investment in developing affordable space transport?
What does international law say about private property ownership in space?
Can there be property ownership without national sovereignty?
What if other nations refuse to recognize land claims in space?
Why not allow smaller, limited land claims for easier steps than settlement?
Could lunar land really be worth enough money to make a difference?
What conditions should the US set for recognition of a claim?
How much land should a settlement be able to claim... and why?
Why must the Earth-Moon space line and settlement be open to all paying passengers regardless of nationality?
Wouldn't it help if a major company announced that, if a land claims recognition law were passed, it would try to develop affordable space transport?
Are the weaknesses and compromises in this plan likely to be permanent?
Didn't the earliest version of this plan talk about Lunar "land grants"? Why aren't you using that phrase any more?
You can't farm Lunar land, and Earth doesn't need the Moon's minerals. So how could Lunar land be put to profitable use?
If you can't give figures, now, proving the profitability of the end uses of Lunar land, how could anyone raise big money for Lunar land?
Could other sources of revenue be enough without land claims recognition?
What if the Lunar settlement does not produce enough operating revenue to pay off its debts and make a profit?
Could the U.S. withdraw from the 1967 Outer Space Treaty, claim national sovereignty on the Moon, then award property rights to whomever it pleased?
What about defense? Does recognizing a land claim obligate the U.S. military to defend the Lunar settlement?
What effect would this have on NASA and the aerospace companies?
The FAQs above cover basic questions about Lunar Land Claims Recognition. The following questions address more advanced issues.
If we really went to the Moon in 1969, why aren't we there now?
What were the assumptions before the Outer Space Treaty, (e.g. Robert Heinlein)?
Could the UN just give every nation a portion of the Moon to own, thereby creating valuable Lunar property rights?
Why don't space activists convince the public to support a government program to establish a base on the Moon and Mars?
Will changing how NASA works bring the taxpayers back on board?
Could this law force the US to recognize a foreign government's Lunar land claim?
Shouldn't we wait to put such a law into effect until free societies are ready to settle the Moon, to keep it from encouraging the Chinese?
Would Article VI of the Outer Space Treaty prohibit Lunar land claims recognition?
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