U.S. Federal Aviation Agency Issues Letter Authorizing(?) Creation of Private Moon Base

by Julian Ku

Glenn Reynolds of Instapundit (and of the University of Tennessee Law School) has a short op-ed in USA Today celebrating the first official US government statement of support for the private exploitation of resources on the moon.  As Reynolds describes it:

Bigelow [a private US company] has decided that it wants to go to the moon, and — here’s the real news — has gotten the Federal Aviation Administration’s space office (Office of the Associate Administrator for Commercial Space Transportation) to give it the go-ahead, and to state that the U.S. government will recognize and protect Bigelow’s right to create a base and to operate exclusively in that base’s vicinity.

The linked report from Reuters elaborates that the FAA is simply using its existing authority to regulate payloads on space launches to authorize activities private companies might use those payloads for on the moon.  In this case, Bigelow is preparing to build an inflatable space habitat, a “moon base”, and would like some statement of US government backing for its project.

According to Reynolds (and many space lawyers), the Outer Space Treaty does not in fact prohibit private exploitation of natural resources on the moon. I am a bit surprised because Article II of that treaty states that:

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

But while national appropriation is prohibited, it appears to Reynolds and others that private appropriation is not prohibited.  This argument takes some interpretive legwork, but it certainly has some historical pedigree, dating back to at least this 1969 essay.

This aggressive reading of Article II is enough to encourage other private space development companies to plan their business models on extracting and then bringing back minerals from the moon. As Moon Express, another company stated:

“The company does not see anything, including the Outer Space Treaty, as being a barrier to our initial operations on the moon,” said Moon Express co-founder and president Bob Richards. That includes “the right to bring stuff off the moon and call it ours.”

I am still not sure about their reading of the treaty’s language.  Did the drafters of the Outer Space Treaty really want to prohibit states from exploiting celestial bodies, but allow any non-state to do so (and without any obvious set of rules to govern those non-states)?  I definitely need to study this question more, but it certainly seems like there will be a dispute on this question someday soon. Any experts out there who wish to comment, please share!


6 Responses

  1. Article I requires “exploration and use … shall be carried out for the benefit and in the interests of all countries … and [outer space, the moon, and other celestial bodies] shall be the province of all mankind.”
    Article VI requires the U.S. to “bear international responsibility for national activities … 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” — to wit, for the benefit and in the interest of all countries, and that the moon will remain “the province of all mankind.”
    I want my share of the profits and I don’t want to pay taxes because of a U.S. failure to properly supervise.

  2. Response… The law of the sea long recognized the concept of “freedom of the seas,” which in “common spaces” such as the high seas prohibited national appropriation (in the form of sovereignty or other forms of exclusive control) — but which allowed private exploitation (appropriation) of resources. Maybe the same sort of concept is behind the recognition that “private appropriation” of outer space mineral resources is permissible. Of course, freedom of the seas is subject to limits; Jordan has pointed out some of the limits on activities that the Outer Space Treaty sets out.

  3. I am certainly no expert but I just wanted to point out that there has been some debate as to the scope of the obligations that Article I of the Outer Space Treaty creates, if any. See, e.g., Daniel Goedhuis, “The problems of the frontiers of outer space and air space”, 1982 Hague Academy Course, arguing that Article I with its “province of all mankind” language is “legally unsubstantial”. As far as I understand the view of Goedhuis, any extraction and use of space resources (even by states) is fine as long as no claim is laid to areas of space or celestial bodies themselves (which would amount to “national appropriation” under Article II), so the divide is not really that of public vs. private use.

    It might also be interesting to compare the Outer Space Treaty to the Moon Treaty, which expressly provides that “[n]either the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of [anyone at all]” and has been ratified by virtually no one.

  4. Thanks Anton. No doubt a counter argument would be that taking any part of the corpus is an “appropriation” of that part. Perhaps by analogy, an occupying power can take the apples off the apple tree but cannot take the tree or any of its branches.

  5. Sir, I suggest that you read the most adavanced learned commentary on space law, the Cologne Commentary on Space law, edited by Stephan Hobe/Bernhard Schmidt-Tedd and Kai-Uwe Schrogl, Colgone 2011 and 2014 as well as 3rd volume forthcoming in 2015, particularly the commentary to article II of the Outer Space Treaty and the article 11 of the Moon Agreement commentary.
    Than you will see that the existing legal regime does indeed allow the exploitation of lunar resources.
    Best regards
    Stephan Hobe
    Professor of Air and Space Law
    University of Cologne, Germnany

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