TCS Daily


How to Create a Lunar Klondike

By Glenn Harlan Reynolds - May 5, 2004 12:00 AM

A few weeks ago, I wrote about the role of the X-Prize in promoting private space efforts, and noted that those efforts were likely to be cleverer, and cheaper, than government programs have been. Now there's a prediction that the X-Prize will be won by the end of the summer.

In addition, there's new legislation that will facilitate private efforts (including those of hobbyists) to pioneer new space technologies. The writer Rand Simberg has a roundup of discussion on that topic.

This is all good news, and I strongly suspect that the settlement of outer space will ultimately happen -- as the settlement of the Americas did -- as much by the initiative of individuals and small groups as by big government programs. (Whether it was the Pilgrims in the Mayflower, or the proto-Indians who crossed over the Bering land bridge, neither got here via Big Government efforts.)

But both the Pilgrims and those prehistoric colonizers from Siberia had something that modern space enthusiasts don't -- they were pretty sure that once they got here, they could claim land without government interference.

That modern space enthusiasts can't say the same thing was demonstrated just last week when space development activist Greg Nemitz lost a case in Federal District Court over his claim to the asteroid Eros. (You can read the opinion here, and see much more background here.)

Nemitz's claim to Eros was not terribly strong, as he had neither visited the asteroid in person, nor by robot. (There's some support in maritime salvage law for the notion that you can establish a claim to unowned resources via telepresence -- that is, robotically). Nemitz merely filed a claim with the Archimedes Institute, a nonprofit registry that records space claims as a means of establishing priority but that does not claim to grant title. (More information here.)

I think that a person who established such a physical presence, personally or robotically, might well have a valid claim to space resources even under existing space law. But, in the absence of specific law to the contrary, I don't think that a mere claim is enough.

Which leads me to wonder what the law in this area ought to be like. The 1979 Moon Treaty sought to outlaw private property rights in outer space, granting international control to a monopolistic "international authority" that would govern all such efforts. Fortunately, no major space power has joined the Moon Treaty, and it is unlikely to gain any new adherents any time soon. This still leaves us with the question of what to do, however. This is not the place to lay that out in detail, but here are some thoughts.

First, no international authority should have exclusive rights to extract space resources. Such an exclusive role would contravene the 1967 Outer Space Treaty's provision 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." An exclusive role for an international body would also eliminate the spur of competition, which likely would slow down the rate of progress and hence the rate at which benefits returned to Earth. One lesson of the last century, after all, is that large bureaucracies often become flabby and moribund, and that state enterprises often lack the will or ability to flourish.

Second, to encourage development, space pioneers should receive land grants or other similar grants of interest in space resources to serve as an incentive for development. The use of land grants to railroads was instrumental in opening the American West; properly structured, such grants could dramatically increase the pace at which space resources are developed, and they could draw private capital and expertise into ventures that would otherwise be undertaken only by government agencies or not at all. Such grants could be administered by a variety of entities, from the United Nations or another multi-national body to the United States government (which could not claim sovereignty over space resources itself, but which could recognize claims by United States citizens, a position analogous to the U.S. government's longstanding position with regard to the deep seabed). I suspect that the grants should be contingent on development within a reasonable time (to ensure results and to prevent undue speculation), but they should be freely alienable, so as to promote capital formation. Visit an asteroid, assay its content and file a claim -- then you'd have a period of exclusive rights to develop it. Since you could sell shares, such rights would make raising capital easier.

Given the current low ebb in the United Nations' reputation, I don't think that U.N. involvement would do much for such an approach. The United States might be better off trying to negotiate an agreement with other leading space powers -- Russia, China, France, Great Britain, India, et al. -- than by pursuing an approach that would give many other countries with no direct stake in the proceeds a veto.

With all the other diplomatic issues facing the U.S. government, I don't expect this one to get front-burner treatment in the near future. But as private space efforts begin to look more promising, it's a good time to start thinking about this topic. For some more insights on this subject, you might want to visit the website of the Space Settlement Initiative, a strong advocate of space property rights, and read earlier columns here and here.


Though our attention is focused on earthbound events these days, it's likely that the long-term future of humanity will be far more influenced by our progress toward space.

Glenn Reynolds recently wrote for TCS about looking beyond the nano-hype.


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