The U.S. Federal Aviation Administration (FAA) has decided to “authorize” operations on the Moon as part of the process of granting a license for the launch of a commercial payload to space. This launch-licensing scheme affords advance federal government recognition of planned commercial activities on the lunar surface, specifying an “exclusion zone” within which other payloads would not be permitted. This decision by the FAA is heralded as a “first step” towards the specification of private property rights for the Moon.
Although much has been discussed over the past few years about mining the Moon for materials, metals, nuclear fuel and rocket propellant, all of these discussions focus almost exclusively on the technical issues associated with resource extraction, transportation and use. Little has been offered on the legal issues involved in lunar (or an extraterrestrial) mining – staking a claim. This legal vacuum exists for a very straightforward reason: no one knows the legal status of commercial space mining and planetary surface activity.
Several international treaties, the most pertinent of which is the 1967 U.N. Outer Space Treaty (OST), set the current legal regime for space activities. The OST was signed by 129 countries, including all of the major space faring nations. The treaty bans nuclear weapons in space and prohibits any nation from establishing territorial claims on extraterrestrial bodies. This formulation left open the question of private development and ownership, although the treaty states that “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.
Note well – “free for exploration and use by all States…” That wording would appear to guarantee the rights of a nation to mine the Moon, extract a product, and then – what? Certainly one would suppose that this language ensures that a government facility could manufacture rocket propellant to use in its own vehicles. But does it permit a private company based in that nation to make the same product and then offer it for sale on the open market? Despite the FAA decision, that question is unresolved.
In fact, it’s not completely clear just what issue is resolved with the new FAA ruling. Certainly they can issue restrictions on American companies in regard to impinging upon the activities of another American company, say for example, Moon Express landing a vehicle near an installation of Bigelow Aerospace inflatable habitats on the Moon. But who else is obliged to observe those restrictions? International companies that launch from their own soil do not require FAA commercial licenses. Unless some reciprocal agreement is reached with all these nations, their private companies do not have to respect the access and “control zone” rights of our nation’s companies.
The situation becomes even murkier when considering the possible interactions of a private American company on the Moon and the national representatives of a foreign power. Suppose another country (e.g., China) decided (for whatever reason) to land their government-funded, military-controlled spacecraft on lunar territory that the FAA had previously “set aside” for the exclusive use of Bigelow Aerospace? Legally, the FAA license has nothing to do with China, who are not bound to observe any restrictions. When international relations are peaceful and productive, conflicts are unlikely to arise. But political situations change, sometimes at the drop of a hat, and certainly on timescales shorter than industrial development cycles.
Prime locations on the Moon – as on any other extraterrestrial object – are not limitless, and access to and use of the most desirable and valuable sites for resource prospecting and harvesting may be contentious. In terms of water production (rocket fuel and life support consumables), ideal sites are in zones of enhanced duration sunlight (“quasi-permanently lit areas”) near the Moon’s poles, proximate to permanently shadowed regions (deposits of water ice). At such locales, electrical power can be continuously generated in order to extract the nearby water ice. There may be only a few dozen zones where initial ice harvesting facilities may be operated with reasonable efficiency (more prospecting data will give us a better picture). If this turns out to be the case, then who gets the rights to produce the product? What constitutes staking a claim? First come, first serve? Or does “might” make right?
This issue leads us to the consideration about the presence and role of the U.S. federal government in space. I have contended previously that a strong federal presence in space is necessary to ensure that our rights are established and that our values be protected and promoted. In the hypothetical context mentioned above (Bigelow vs. China), a single American company facing a determined nation-state is not likely to prevail in a manner favorable to the interests of free market capitalism. Legal recourse on Earth would be limited (more likely, non-existent) and it is also unlikely that the United States would go to war over the infringement of some corporate plot of land on the Moon – at least during the early stages of commercial space. However, if the federal government establishes a presence, it gives notice to the world of our national interests there. Such a presence makes the infringement of property and access rights of American corporations both less likely to occur in the first place – and more easily resolved if such a situation arose.
There is no reason to assume that all nations will voluntarily cooperate in space, if for no other reason than nations do not behave this way on Earth. Sometimes national rights of way and access to resources must be guaranteed by physical presence, backed up with threat of force. This is the way of life at sea here on Earth and the reason that we have a blue-water navy – not only to defend our country, but also to project power and protect our national interests abroad. Historically, the navy has conducted exploration and goodwill tours in peacetime, and power projection in times of tension and war. A space navy could do likewise as humanity moves outward into the Solar System.
For these reasons, I think that the new FAA letter doesn’t deal with the identified need for articulation of space property rights, but rather, seems to be a way to put off such a discussion for a later time. Ultimately, we will need to face up to our national and collective responsibilities to protect American commerce wherever it occurs. Given the risk being taken in opening up space to commerce, companies need the assurance of government’s protection of their investment. In the very near future, our theater of operations will include cislunar space. The idea that the “private sector” alone can develop near Earth space is not realistic. It remains a dangerous, unpredictable world and clear-thinking leaders will plan for future confrontations, if only so that they may be avoided. Any display of weakness will be exploited – and not to our benefit.