Reuters reported today that “U.S. companies can stake claims to lunar territory through an existing licensing process for space launches.”
The Federal Aviation Administration, in a previously undisclosed late-December letter to Bigelow Aerospace, said the agency intends to “leverage the FAA’s existing launch licensing authority to encourage private sector investments in space systems by ensuring that commercial activities can be conducted on a non-interference basis.”
In other words, experts said, Bigelow could set up one of its proposed inflatable habitats on the moon, and expect to have exclusive rights to that territory — as well as related areas that might be tapped for mining, exploration and other activities.
Company founder Bob Bigelow has been very vocal about the need to clarify lunar property rights. A November 2013 Bigelow report delivered to NASA concluded that property rights would need to be clarified in order for private companies to invest in exploitation of lunar resources. According to NewSpace Journal:
The Bigelow report argues that, for private companies to be involved in any joint venture with NASA in cislunar development, they must have property rights on the Moon or other bodies that are not available today under existing space law structures, a controversial subject in space policy. Companies “must know they will be able to (1) enjoy the fruits of their labor relative to activities conducted on the Moon or other celestial bodies, and (2) own the property that they have surveyed, developed, and are realistically able to utilize,” the report states. And, in a point emphasized in the report in bold, italic, and underlined type: “Without property rights, any plan to engage the private sector in long-term beyond LEO activities will ultimately fail.”
With a property rights system in place on the Moon, both NASA and industry would benefit, the report concludes. “By leveraging a property rights regime private sector facilities could be developed on the Moon which NASA could subsequently take advantage of for a wide variety of astronautics and scientific activities. What the Agency could never afford to do alone could become financially possible due to the husbanding of private and public sector investments and resources.”
A February 2014 NASASpaceflight.com article reported that Bigelow had asked the FAA's Office of Commercial Space Transportation (known as AST) “whether launching a Moon habitat allows them to have a zone of operation in which other persons are prevented from entering.”
The 1967 United Nations Outer Space Treaty governs the operations by nations in “outer space,” a phrase that is left undefined. It was written at a time when the United States was about to land humans on the Moon for the first time, and the Soviet Union was trying to catch up with development of the N1 rocket. It seemed logical that a few basic rules be established, although as with any U.N. law their success depends on the good will of its member nations.
Part One, Section E, Article 11 states:
Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the Moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the Moon or any areas thereof.
It was anticipated that the day would come when lunar exploitation might become viable:
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.
Article 14 holds nations responsible for the activities of “non-governmental activities”:
States Parties to this Agreement shall bear international responsibility for national activities on the Moon, 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 this Agreement. States Parties shall ensure that non-governmental entities under their jurisdiction shall engage in activities on the Moon only under the authority and continuing supervision of the appropriate State Party.
The Reuters article quoted Bigelow saying how he interprets the FAA letter:
The FAA’s decision “doesn’t mean that there’s ownership of the moon,” Bigelow told Reuters. “It just means that somebody else isn’t licensed to land on top of you or land on top of where exploration and prospecting activities are going on, which may be quite a distance from the lunar station.”
If history is a guide, one day in the future someone will try to seize lunar territory already claimed by a nation or company, and we will see a repeat of empires warring with each other for natural resources. The Outer Space Treaty probably will be ignored, as nations struggle to keep their corporations in line. Rogue nations will do what they feel like anyway.
All that is decades, if not centuries, away. But it will be a nice problem to have, because it will mean that humanity has established a permanent human presence on another celestial body.