Regulating Business on the Moon

Lunar outpost under construction using 3-D printers to fabricate infrastructure.  NASA image.

Lunar outpost under construction using 3-D printers to fabricate infrastructure. NASA image.

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.

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32 Responses to Regulating Business on the Moon

  1. Joe says:

    Great article.

    There is also the fact that a truly commercial exploitation of the Moon is not practical at this time because a true “business case” could not be made to amass the capital.

    – The amount of capital required is too high (to much hardware to be developed).
    – The technical risk is too high (related to both the new hardware and characterization of the available resources).
    – The Return on Investment period is too long (related to hardware and characterization).

    That is why the government (some government) will have to “buy down” all those areas before true commercial activities can take place on the Moon.

    The good news is that doing the exploration/development would also allow the establishment of the Space Navy noted in the article.

  2. Vladislaw says:

    Thanks Dr. Spudis, good article. It may, as you say, be kicking the can down the road. But it is also at least causing some conversations to be taking place. If they get run up the flagpole is again a different story.

    I was thinking this was in response to the Google Lunar prize. The FAA wants to have something in place in case some of those robots actually get launched?

  3. billgamesh says:

    The Space Navy is key. Might does make right. That does not mean international cooperation is not going to work of course- it just means for nations to agree there has to be something to back up claims and enforce treaties.

    The first treaty that needs to be amended is the nuclear weapons ban. This is critical if a true Space Navy is to come into being because only devices classed as weapons are practical for propelling spaceships. Nuclear Pulse Propulsion will remain the only way to push the massive cosmic ray shields necessary for Human Space Flight Beyond Earth Orbit (HSF-BEO) for decades to come. The ice on the Moon to provide water for shielding should be the central focus of the entire human spaceflight community.

    A commercial Moon will be a Nuclear Moon.

    • LoboSolo says:

      I put forth the need for a “Space Patrol” in blog more than a few years ago:

      I disagree about NPP. That is the least likely way we’ll note nuclear/atomic power. Nuclear thrust (NERVA or TRITON) or electric drive (VASIMR) are much more developt. NPP is still a paper project.

      Yes, a commercial Moon will be a nuclear Moon. Solar won’t work in the 14 days of darkness.

      • billgamesh says:

        Disagree all you want but bombs work. Tested a thousand times.

        • LoboSolo says:

          Bombs are not a spacecraft nor hav they ever been tested as propulsion. There is a big wide gap between setting off a nuclear bomb and using that to drive a spacecraft.

      • billgamesh says:

        NERVA uses a reaction a million times more powerful than chemical combustion to produce an Isp only twice that of conventional rockets. Pathetic and not worth the trouble. As for Triton and VASIMR- they are just barely more than “paper projects” and are extremely complicated systems. I doubt they will ever be used. Stan Ulam had it figured in the middle of the last century; nuclear energy can never be contained efficiently by any material construct. He understood the only way to harness this power for interplanetary travel was to do away with any containment problems. He was, in fact, a genius. So is Freeman Dyson. Pulse Propulsion was endorsed by Von Braun, Clarke, and Sagan. These facts are all pretty much unknown to the public.

        • LoboSolo says:

          Wow … So you want to throw away a known doubling of the Isp for a paper idea? Truly? You do know the old saw, “A bird in hand is worth two in the bush”? We hav the bird in hand, utterly no sense in throwing it away for a paper idea.

          Since TRITON is rooted on NERVA, that alone puts it WAY ahead of any NPP in terms of development.

          VASIMR (and other ion propulsion) hav also had hardware built and tested … again, that puts it WAY ahead of any NPP.

          Stan Ulam was a mathematician, not an engineer and that was many years ago. Meanwhile science and engineering has gone forward.

          Von Braum was a strong backer of nuclear thermal drives:

          “In 1969, NERVA’s successes prompted NASA-Marshall Space Flight Center director Wernher von Braun to propose sending 12 men to Mars aboard two rockets, each propelled by three NERVA engines. The mission would launch in November 1981 and land on Mars in August 1982.”

          Better is the foe of good enuff. NPP might … MIGHT … work and MIGHT be the best drive but it is all paper right now. It would take years of work to even get to the physical testing phase. In the meantime, the alreddy tested NERVA could put us on Mars … von Braun saw this and that is why he put forth a mission to Mars with NERVA engines. Don’t put off what we can do now for what we MIGHT can do later.

          • billgamesh says:

            Nerva is basically an improved chemical rocket engine providing improved performance at vast expense. Nothing about it is easy or efficient. It is hard enough keeping an engine that just burns hydrogen and oxygen from melting.

            Like I said, bombs work. A vast fortune has been poured into SDI on directed energy devices; pulse propulsion devices are directed energy devices. Thank you Ronald Reagan. Bombs have no moving parts. If one is a dud there are plenty more. As for Isp a pulse propulsion system would have numbers in the tens of thousands. A Bomb system would go into service far sooner than years of trying to make that VASIMR monstrosity operational. KISS.
            And Mr. Brown was “strong backer” of whatever would work. He was also notoriously conservative concerning risky propulsion options like Solid Rocket Boosters and hydrogen. But unlike some people, he could change his mind when his arguments were answered. He changed his mind about hydrogen and attributed that propellent with making the Moon landing a success. He also was enthusiastic about about bomb propulsion after a meeting with Freeman Dyson. History.

            “Stan Ulam was a mathematician, not an engineer and that was many years ago. Meanwhile science and engineering has gone forward.”

            Not a good argument considering the world class scientists and engineers that worked on Project Orion.

    • Warren Platts says:

      We already have a “space navy”: it’s called the Joint Space Operations Center (JSpOC), a division of the U.S. Strategic Command.

      As for nuclear weapons in space, that’s about the last thing we need; the ban is the primary saving grace of the OST IMHO. As for nuclear reactors to provide electricity, you’re going to have a hard time cooling them. As for dealing with periods of darkness using solar power, there are at least a couple of options: (1) LH2/LO2 could power fuel cells or even internal combustion engine generators during dark periods; or my favorite (2) a space based solar power system at the L1 or L2 points could continuously beam energy in the form of lasers (this would also save A LOT of downmass).

      • LoboSolo says:

        Cooling a reactor in space isn’t hard … heat scattering panels should work … space is pretty cold. I’ll hav to check to see how an MSR would work but off the top of my head I don’t see any hardship with it.

        Here is a good idea out of Los Alamos:

      • billgamesh says:

        Nuclear pulse devices (let’s not call them bombs if it so upsetting) are the first thing needed in space to do any heavy lifting. They just have to be used outside the Magnetosphere to prevent fallout. It would take lighting off several thousand devices in the atmosphere to equal a fraction of the contamination caused by Fukushima. As for basing the deterrent in deep space it makes far more sense then having them on Earth targeted for first strikes and on a hair trigger with just minutes to launch. And they can be used for asteroid and comet deflection as well as provide a much safer form of deterrence. But like radiation, no data seems to mean no problem so both are trivialized by those who do not want anything to do with returning to space. The U.S. has been stranded in LEO since 1972.

        The resources required to establish a human presence Beyond Earth Orbit are far beyond those available to “entrepreneurs” and the critical resource for shielding is the ice on the Moon. As William Mellberg has explained in comments here several times, the NewSpace claim to be “commercial” is an illusion. LEO is a dead end and that is the only place the limited capabilities of private companies can send people- and they have yet to do so. Thus any mention of Super Heavy Lift Vehicles or nuclear energy in space draws immediate and intense criticism from NewSpace proponents. I was just banned from my fifth blog for daring to criticize the flexible path. Standing up to the Ayn-Rand-in-space cyberthugs is not tolerated. The bullying is not allowed here and so far this is the only blog I have been given the freedom to express my views. Thanks Dr. Spudis.

  4. The Outer Space Treaty (UNITED NATIONS TREATIES AND PRINCIPLES ON OUTER SPACE) states the following states the following on this issue:

    States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement.

    6. In order to facilitate the establishment of the international regime referred to in paragraph 5 of this article, States Parties shall inform the Secretary- General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of any natural resources they may discover on the Moon.

    7. The main purposes of the international regime to be established shall include:

    (a) The orderly and safe development of the natural resources of the Moon;

    (b) The rational management of those resources;

    (c) The expansion of opportunities in the use of those resources;

    (d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon, shall be given special consideration.

    • Paul Spudis says:


      These quotes come from Article 12 of the 1979 U.N. “Moon Treaty” (which the U.S.A. has NOT signed), not from the 1967 U.N. Outer Space Treaty (which we have signed). In fact, the Moon Treaty was specifically rejected for ratification by the Congress, after an intense lobbying effort by the then-L-5 Society and other space advocacy groups.

      In any event, given their abysmal track record, the U.N. would be the very last place I would go to for redress of governance and proprietary issues.

      More discussion by me of the U.N. Treaties here.

  5. I know the libertarians out there dream about no government presence in space. But that would mean the rule of the New Frontier by private militias. So there is going to have to be some government police or military presence in places where large communities and valuable property develops.

    But I’ve had a hard time figuring out what that would be called since it could sound threatening to other nations if its called the United States: Space Guard, Space Force, Space Patrol, or Space Police.

    Maybe it would simply be prudent to simply allow the US Air Force to conduct search and rescue operations in space and to protect Americans and American property in the New Frontier.


  6. billgamesh says:

    The human presence is what will be the determining factor in territorial claims. And the problem with living on the Moon is first of all how to construct a radiation sanctuary with the least amount of energy expended. My last stab at this was suggesting roofing over a small crater with a water filled bladder. The NASA image Dr. Spudis used is a typical impractical depiction of a bobcat, a crane, and an astronaut enjoying a refreshing radiation bath (and using up a chunk of the very limited percentage of of his or her lifespan that can be spent doing such work). Landing tons of construction equipment and using human labor on the surface is pure fantasy.

    The requirement for any permanent base is very large sports-arena-sized underground living and working spaces. I submit there is only one way to make that happen. Nuclear devices did work if not so practical for use on Earth- but the Moon is an entirely different proposition.

    I used to live a couple blocks away from the Seattle site where Bertha the monster tunneling machine was supposed to be about done by now but broke down last year and the project has turned into a fiasco of epic proportions. I doubt the Moon is going to make such work any easier.
    The shielded environment must first be large. Trying to accomplish anything in tiny cramped tunnels is a non-starter. Building on the surface is the wrong way to go. The solutions are to first find a natural formation amenable to putting a water-filled roof over while nuclear explosives are used for major underground excavation.

    Of course before we can land humans there are years of playing catch-up with a lander program. In the interim there are semi-expendable robot lander ferrying water up from the ice deposits to empty upper rocket stages in lunar orbit. This path can provide shielded space stations for the first astronauts to finally establish a human presence Beyond Earth Orbit. And say goodbye to the dead end of LEO for good.

    • Paul Spudis says:

      You are too absolutist in your assumptions about the levels of “acceptable” radiation exposure on the Moon. Humans will personally explore and work on the lunar surface. Their maximum amount of time outside and exposure during certain periods will be limited, but there is no reason to cower forever in buried habitats.

      • billgamesh says:

        Yes Dr., I did not mean to sound so extreme; my point is that if you are a scientist that is going to spend most of your professional life in space you will necessarily only have so much time to spend getting dosed doing surface explorations. Spacing the exposures out means you will not be exploring all the time and even then eventually a lifetime limit will be reached. I suspect that limit will be much lower than people are hopefully guessing at now. Wasting finite exploration life-time running a bobcat is…..well, stupid.

    • I just don’t see what’s so hard about protecting lunar habitats with five meters of regolith (the equivalent of the Earth’ atmospheric protection from radiation). Only 10 centimeters of lunar regolith are require to stop heavy nuclei.

      Lunar Source Book

      And even if astronauts spent 10% of there time on the Moon (over two hours per day/nearly 17 hour per week) working on the surface, that would still only expose them to 3.8 Rem per year during the solar minimum and 1.1 Rem per year during the solar maximum, well below annual radiation worker standards on Earth.


      • billgamesh says:

        Heavy Nuclei blows through 10 centimeters like it is not even there and generates a nice bonus of secondary radiation. You need to understand that what you keep trivializing is THE showstopper Marcel. Please cite the 10 centimeter source.

        • While heavy nuclei are much more damaging than protons, its actually protons that have the deepest penetration through lunar regolith– not the heavy nuclei. This actually makes sense since heavy nuclei are much larger objects than protons and are, therefore, much more likely to encounter other atoms while penetrating an object– which is exactly why they are so damaging to humans.

          “The heavy nuclei in the galactic cosmic rays are usually stopped by ionization energy losses within ~10 cm of the lunar surface. Most of the radiation damage induced by these heavy GCR nuclei occurs within the top few centimeters. This radiation damage is so intense that it can be seen as high densities of tracks in lunar samples (Walker, 1975; Reedy et al., 1983) and can cause problems in sensitive electronic components (Adams and Shapiro, 1985). Shielding of a few g/cm2 is usually adequate to remove most of these highly- ionizing heavy GCR nuclei.”

          David Vaniman, Robert Reedy, Grant Heiken, Gary Olhoeft, and Wendell Mendell

          Chapter 3. The Lunar Environment in:

          Lunar Source Book: A Users Guide to the Moon

          edited by

          GRANT H. HEIKEN
          Los Alamos National Laboratory
          DAVID T. VANIMAN
          Los Alamos National Laboratory
          BEVAN M. FRENCH
          National Aeronautics and Space Administration

          with an intro by Harrison Schmitt (the only scientist ever to visit the Moon).

          Read the book. Its full of useful information!

          • billgamesh says:

            Sounds wonderful Marcel. Full of hopeful language. Usually, most of; except it waffles on secondary radiation completely. No hard numbers in your citation. If it takes 15 feet of water, which is better shielding that regolith, to equal 18,000 feet above sea level, then the hopeful language becomes less reality and more hope.
            Radiation is square one. People cannot live, for the decades they would spend on a career in space, in a radiation bath. We get enough on Earth and that is all that humans can tolerate in space if they are going to suffer periodic high exposure events like Dr. Spudis’ point about exploring vs cowering in a hole.

            The only really accurate and informative work I have found on Shielding Space Travelers is the article of the same name by the authority on space radiation. I don’t think you can argue with him about it.

          • Joe says:

            Hi Marcel,

            You are never going to convince “billgamesh” to consider anything different on the subject in question.

            His “the authority on space radiation” (as if there is only one) is Dr. Eugene Parker and while he did not list the link his source is this article in Scientific American:


            You will note in this popular science article Dr. Parker continuously uses such prejudicial language as:

            – It (meaning space travel) is not quite as bad as venturing inside a nuclear reactor …
            – MARS’S PITIFUL ATMOSPHERE (an atmosphere can apparently be pitiful) is scant protection

            Then near the end of the last page of the article he leaves himself this bolt hole:

            “Natural healing processes in the cell may be able to handle radiation doses that accumulate over an extended period, and some people’s bodies may be better at it than others’. If so, the present estimates of the cancer incidence, all based on short, intense bursts of radiation, may overestimate the danger.”

            Then closes with this:

            “Capable people might be willing to go to the moon or Mars just for the adventure, come what may. Even so, the radiation hazard would take the luster off the idea of human space travel, let alone full-scale colonization.”

            Dr. Parker is indeed a well-respected scientist, but I will leave it to you (and other readers) to decide whether or not he may have an anti-human space flight agenda that may motivate his “analysis”.


            Please do not respond to me on this. You seem a well-meaning sort and (while I disagree with you on some – not all – issues) I actually like you. However repeating the same points on radiation over and over again regardless of the subject being discussed serves no purpose.

          • Thanks for the comments Joe. They’re much appreciated!

            I read Dr. Parker’s article in Scientific American when it first came out. And I find nothing wrong with his analysis.

            Prolonged periods of exposure to cosmic radiation is probably deleterious to human health– especially heavy nuclei which can damage the brain.

            But there’s nothing in Parker’s article that says heavy nuclei are anywhere close to being as deeply penetrating through materials as protons are– because it simply isn’t true! They’re more dangerous. Yes! But they are not deeply penetrating.

            While Parker argues that 5 meters of water (allowing less than 5 Rem of exposure during the solar minimum) should adequately protect humans from dangerous levels of cosmic radiation, those levels are only necessary if astronauts intend to— stay permanently in space. But that’s not the intent for radiation shielding interplanetary vehicles since such journeys will only require enough shielding for several months or a few years of exposure.

            On the ISS, Astronauts experience much higher levels radiation than Parker would advocate (20 to 40 Rem annually). Of course, they’re usually only at the ISS for a few months at a time. Mars missions could last up to three years. So you’re definitely going to need more shielding for interplanetary voyages than what the ISS provides.

            Less than 20 cm of water would be needed to stop heavy nuclei, and 50 cm should mitigate overall cosmic radiation and spallation to levels of exposure less than 25 Rem per year during the solar minimum (the worse case scenario). Of course, during the solar maximum, radiation exposure will be substantially less.

            NASA’s annual astronaut exposure limit is 50 Rem. And lifetime limit for young woman 25 years of age is about 100 Rem.

            50 cm of water should also be more than enough to prevent excessive radiation exposure during major solar events.


  7. Thanks for the correction Dr. Spudis!

    I don’t see the UN as any panacea but just another international organization where international agreements can be facilitated.

    But I do believe that there needs to be some rational international agreements and regulations on the exploitation and the limits of exploitation of extraterrestrial environments. Otherwise, those who get there first will make the rules. And a decade from now, that could well mean that China makes the rules.

    And please libertarians, don’t give me any of that stuff about US companies taking on China. All I’ve seen US companies do over the past few decades is to appease China and even propagandize for China; they’ve even sold technologies to China that clearly endanger the welfare and the freedom of the American people.


    • Joe says:

      “Otherwise, those who get there first will make the rules. And a decade from now, that could well mean that China makes the rules.”

      That is exactly the point. Neither the United Nations or any other international organization has (or in my opinion should have) the power to enforce a regime on unwilling parties. Therefore the rules of the game will eventually be established (perhaps through the UN or other international organization) by the players in the game.

      Right now that probably includes China and Russia (their new crew vehicle is being specifically designed to requirements applicable to a Lunar vehicle), but not us. Unless that changes, when (and if) lunar development starts we will have no say in the rules.

      • billgamesh says:

        Once they land some humans on the surface there is an automatic no-fly zone for whatever area they claim for safety. There is no argument against that. Territorial claims will follow but initial possession is 9/10’s. Keeping humans alive and in possession is going to require first a radiation sanctuary because solar events randomly ravage the lunar surface. Then they need air to breathe, etc. and enough water solves all these problems.

  8. Warren Platts says:

    I think the FAA letter is an important step in the right direction as it demonstrates the USG’s resolve to back up American private and governmental property claims.

    It could be objected that the clause that prohibits “national appropriation by claims of sovereignty or use” would also prohibit any property claims. However, there is the long-standing distinction between imperium and dominium that goes back at least to Roman times and is enshrined in US law in places like the Guano Islands Act and the Insular Cases (a series of Supreme Court decisions at the turn of the 20th century).

    Basically, at the end of the Spanish-American War, the US had several new territories dumped in its lap: the question was whether such land should be considered part of the sovereign territory (imperium) of the US. The answer was that it was NOT (the problem being that millions of Filipinos, Cubans, and Puerto Ricans would have had to have been given full US citizenship with all the rights that entails). IOW, PI, etc. were considered to be mere property (dominium).

    So an analogous process could work on the Moon: Bigelow (or NASA or China) could declare reasonable exclusion zones around their installations that would be their private property for all practical purposes; whereas the sovereign in this case would remain humanity as a whole as per the OST. No contradiction is involved.

    As for selling stuff produced on the Moon, I believe that is fully consistent with the OST: IIRC Article 8 states that the ownership of items “constructed” on the Moon is not affected by the mere fact that that they are on the Moon. Thus, even a mere rock where nothing more is done than grabbing and bagging it becomes an artifact due to the fact that it is “taken” out of its natural setting, rather like commercial fisheries on Earth: the wild fish belong to the public as a whole, but once the fish is taken, it belongs to whoever caught it and may be sold. There is already precedent for this: the Russians have sold some of their lunar samples–no one has complained so far….

    • Paul Spudis says:

      I agree that in broad terms, the 1967 OST already permits both resource extraction and its subsequent use (for either consumption or sale). The problem arises when competing claims transpire, especially claims involving national governments and private corporations. I believe that unless the U.S. Government has a physical presence in the areas where American commerce occurs, such possible conflicts are not likely to be resolved in favor of the corporate entity. If American corporations want to make money from lunar materials, they would be better off legally if the U.S. federal government were also there, doing similar kinds of activities.

    • billgamesh says:

      “-declare reasonable exclusion zones around their installations that would be their private property for all practical purposes; whereas the sovereign in this case would remain humanity-”
      That will not work. It works on the oceans because ships only temporarily transit fishing grounds and shipping lanes. Installations that generate revenue and exclude others from doing so by their presence are a different matter.
      Semi-expendable robot landers for harvesting ice and shuttling it up to orbit neatly sidestep the human-present complications- until the U.S. finally gets smart and catches up with a human-rated lander program. Landing a human crew on an ice deposit means no foreign robots are going to land as long as the humans are present. If the lander is equipped with a collapsible water dome it can in short order encase itself in a radiation sanctuary and then convert the water into oxygen and scrub CO2. It would have to be a decent size lander to do this; which is why Constellation was such a perfect architecture.

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