The new wave of planting the flag: the moon, asteroids, and beyond.

I am part of a group of folks who believes that one day in the future, if we ever get our collective acts together, the future will be in space.  There are a lot of resources out there;  far more than ever did or currently exist on Earth.

The moon and Mars are a sure next stop.  However, there are a lot of asteroids orbiting about that also have their share of commodities to be had.  Back in 1967 there was a treaty signed and ratified by a lot of countries including any nations that have or likely will reach space soon.  It basically subjects all of outer space to the idea that nations ratifying the treaty will not ever claim sovereignty over anything.  Back in 1967, this was something of concern:  the USSR and USA were both close to getting someone to the moon, and most people were concerned that the two were going to extend the Cold War to lunar colonization.  While most Americans look at considerable pride the flag displayed on the moon, more than a few folks panicked at the thought that it looked very similar to a sixteenth century explorer laying claim (it was not … Congress even passed a law making that very clear).

But … back in ’67, what wasn’t being considered much was private individuals and companies sending something up and claiming something.  No company signed the treaty, and while nations are typically responsible for making sure that their companies don’t violate international treaties, there is a difference between Microsoft arming and training its employees to mount an assault on Moscow (I can hope, can’t I?), and some company launching what would be considered a relatively cheap probe to claim some asteroid and all of its mineral wealth.  I mean, no one from Greenpece is going to start protesting some rain forest being strip mined or that some rare species of non-delicious lobster needs to be saved from oil drilling.  Governments tend to take action when people get upset, and it is unlikely that anyone is going to get upset over some entrepreneur running their family coat of arms up a spring loaded flag pole on an asteroid several million miles away.

It sounds fantastic to the point of (forgive the pun) lunacy.  However, some of what I have read indicates that we are very close (less than five years) away before enough strong information about the moon and the asteroids are available for smart shoppers with enough money and gumption to begin serious attempts at staking claims, even if it is as simple as launching a small beacon to a spot, letting it plow into the dust/rock and having it beep away that you own it.

There may be considerable money to be had at this, and with the US and many Western governments slowly turning off the spigot of money for space exploration, the government may also be cutting itself out of this slice of the pie.  Governments that get too greedy about taxing companies that work in space may move themselves virtually anywhere on the globe where their relatively small skilled workforce wants and find a place with lower taxes and a welcoming atmosphere for capital.

The legal framework for this is also not going to be easy.  It is difficult enough when dealing with multinationals on Earth, but at least the action of the company, if it falls under legal scrutiny, has some physical location where the action took place, and that place corresponds to a legal jurisdiction of some form (usually).  However, space has already been designated as belonging to no one, and therefore exists outside of a physical  jurisdiction.  When a claim jump occurs in space, where do you file the lawsuit, especially when that company might have a headquarters in one country, a launch facility in another, and perhaps  recovery area somewhere in the middle of the Pacific Ocean.  Not to mention, what if (for example) some of these companies are situated in China, and are in fact little more than fronts for the government of the People’s Republic?

I was prompted to take a break from my research to do other research when I read this article, which included a small bit about an American entrepreneur who tried to unsuccessfully jump start the process when he claimed ownership of asteroid 433 Eros for use as a future parking facility for spacecraft, and that since NASA was getting ready to park (read: “land”) their NEAR space probe on the asteroid.  The lawsuit was dismissed on the issue of their not being any legal theory to even begin a discussion of the case.

I can only imagine how complicated this will be.  Last year, I learned some basics of mineral laws when I took a workshop on oil drilling, and had not been aware that while one might own the property, the underground minerals are not considered a part of the property, and that prospective miners or drillers need to not only negotiate with the surface property owner, but sometimes several individuals or corporations who own the rights to the underlying minerals.  One suspects that the same complexities of the law might one day apply to celestial objects.

The coming years will be interesting for the space entrepreneurial community as they continue to dip their toe in the vacuum to see what there is to be accomplished.  With it will come the need for some equally interesting law.

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