“Who Owns the Moon” by Virgiliu Pop. Published in 2009 by Springer as Vol. 4 in their Space Regulations Library, it weighs in at 175 pages all in. A handful of editing errors, mainly in the last half.
While this could be considered a follow-up to Virg’s earlier work “Unreal Estate”, which was as thorough a Title Search on who owns the Moon as you’ll find, really it stands alone by taking a different approach. While the prior book looked backwards at who was trying to do a land grab of Lunar real estate over the years, this one instead looks at how we can move forward by taking a look at how the law stands now, its context, including historical, and how it is interpreted.
Because the statutes right now are vague enough that they are subject to differences of opinion in how the rules apply. Virgil spends the first chapter addressing the question of ‘Is the Moon for Sale?’, specifically in the context of Lunar Embassy, which he seems to relish debunking in a number of different ways. I’ve never taken the Lunar Embassy as anything more than a frivolity, along the lines of the folks who will name a star for you. If the IAU doesn’t recognize the star name, it’s worthless. In the case of the Moon, the IAU is limited to feature names, and good luck with getting one named after you.
In the next chapter, we look at ‘The Sources of Landed Property Rights in Space’. It is noted that ex facto sequitur lex, and that laws and judgments arise from facts, and what is happening in the real world. We consider the implications of real property rights in space activities, and the various sources to be considered, like the actors undertaking the adventure, the technical progress that makes it possible, and treaties, laws and judicial decisions that have been sworn to by nations.
Next up is the thing under study – in this case a celestial object. What are some of the legal distinctions that are recognized, like movable and immovable? What are some of the approaches used, like Functionalist or Spatialist? This chapter helps to give you sense for the complexity of trying to answer the question of who owns the Moon.
Then we look at the relationship between sovereignty and property in space. Sovereignty is explicitly forbidden by treaty law, but does that preclude the right to use/appropriate property to add value to human civilization? Five different viewpoints are considered, each giving different answers. Here the author starts looking further and further back in history for sources applicable to a frontier like near-Earth space.
In chapter 5 we look at the Moon as a Commons. It belongs to everyone, by treaty and customary practice, and to no one. Here we look back to Justinian’s work on the Corpus Juris Civilis, one of the major foundations of modern law. The example of the seashore is used. Anyone can go to a beach in any country they can get into that has one, lay down a towel, and have an expectation that your stuff will be left alone. When you leave, you have no further claim on that area of the beach and can make no fuss when someone else moves in. It seems like a simple concept, but it’s really not. That’s why this is the longest chapter in the book.
Next up we look at Homesteading the Final Frontier. The urge to go out and explore is strong in the human spirit. Can one appropriate the resources necessary to survive in space? Should a family that moves to the Moon be denied the right to process oxygen from the regolith so that they may breathe? Also considered is the question of whether sending your towel to the beach via robot is sufficient to stake a claim. The frontier ethos is a strong one in the American tradition, where those who go to a new place are the ones who make the laws. That’s why the laws of Mississippi are so different from those of Nevada. If you don’t like the laws where you’re at, you can find a new state where you do like the laws.
Then we look at the flip side of the coin, The Common Heritage of Mankind (CHM), as embodied in the oft-maligned Moon Treaty. While it has the requisite number of signatories to be “in effect” as international treaty law, little more than a handful of the many nations of the UN ever signed it, and under international treaty law its really only those who signed it who are bound by its text. The author refers to CHM as reaping without sowing, and I can’t say I disagree. I understand its appeal, as it does pass itself off as agent “for all Mankind”, and could serve as a means of alleviating a lot of suffering worldwide, thereby realizing the tagline “space for the benefit of everyone”. It won’t happen that way, but people are burdened with good intentions.
The last major chapter looks at the concept of minerals ‘severed’ from the land and thereby becoming chattel instead of real estate. This is of course the concept of mining our Moon. Three viewpoints are considered as to what the Outer Space Treaty says about appropriating materials from the Moon, and then what the Moon Treaty says. Then there’s the property regime of meteorites to consider.
The Conclusion reviews the prior chapters, and makes the case that actors who venture to the high frontier are entitled to enterprise rights that would enable them to exploit the value that is found there, and thereby increase human prosperity. Some guy can try to sell you Deeds for the South Pole of the Moon, and maybe you could try to collect on the rent when someone lands there. Good luck.
But if you go there, and add value, then that’s yours.
Over 14 pages of bibliography round out the book, with many of the sources available online. Some of the references seem odd, like one to Prof. Glenn Reynolds’ 1995 article from Space Policy, but not to his seminal work Outer Space: Problems of Law and Policy, which speaks extensively to this topic. Nevertheless, he is quite thorough in citing the references.
The main thing that remains unaddressed is a dispute resolution mechanism for torts in space. When I set up a slusher-bucket field to gather regolith, and Virgil’s robot comes wandering through my field and damages my equipment when it tries to process the non-regolith robot, then he has committed a tort and I have a cause of action for the damage rendered unto my equipment. I have to contact my government (the U.S., not bound by the Moon Treaty), which contacts Virgil’s government (Roumania, which is bound by the Moon Treaty), and they have to come to some kind of agreement.
That is the fundamental reason why businesses will not risk the capital, in the form of equipment and personnel, on the Moon. There is no reasonable way to settle disputes, and businesses can’t risk the uncertainty. Anyone familiar with the frontier ethos knows that when the law can’t solve the problem, a weapon will. I don’t think that’s what anyone wants on our Moon.
Speaking of the frontier, while reading this work I couldn’t help but wonder how the native American Indians treated the idea of the commons, the shared lands, in their laws. I can’t help but wonder if there aren’t still lessons to be learned from the ‘last’ frontier that can be applied to the next one, to help sweeten the bitter legacy they’ve endured..
This one is an advanced level text on the topic of ‘owning’ the Moon. Make sure you have your copy of Black’s Law Dictionary on hand as there are many Latin phrases sprinkled throughout. I’ll admit the Lunar Library is a bit light on Space Law books, especially those pertaining specifically to our Moon, so there’s not a lot to compare it with in that particular category. In the context of the broader Library, I’d have to say that it rises to the level of a Lunar Sourcebook: A User’s Guide to the Moon or a The Lunar Base Handbook: An Introduction to Lunar Base Design as a reference for Moon law.
I’ll go with a Full Moon rating for this one.
[Full Disclosure: I know Virgiliu from the Space Generation Forum at UNISPACE III]