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FAA Could Extend Property Rights On the Moon Through Regulation
MarkWhittington writes When the Outer Space Treaty which, among other things, forbade claims of national sovereignty on other worlds, was signed and ratified by the United States in 1967, little thought was given to the idea of private property rights. Now, with companies like Moon Express and Bigelow Aerospace contemplating private lunar operations, that question has become a concern. According to Reuters, the FAA may have discovered a way to enforce private property rights on the moon without, it is hoped, violating the Outer Space Treaty. The idea is to extend the FAA's current launch licensing authority to cover commercial activities on the moon. The agency would license, for example, a helium 3 mining facility, giving the company running it control over it and as much adjoining territory as necessary to run the operation. The size of that territory, for which a particular company would hold property and mineral rights, could be considerable.
Where the Fedzilla Government has dominion over everything, from the bedroom to the moon. Im sure there is a Federal Government, INC. flag at the bottom of the marianas trench.
Legalize the constitution. Think for yourself question authority.
It depends. The physical exploration of the Moon began when Luna 2, a space probe launched by the Soviet Union, made an impact on the surface of the Moon on September 14, 1959.
I take it you're unaware that conventional firearms work fine in a vacuum? No, neither gunpowder nor modern smokeless powders require external oxygen to burn....
"I do not agree with what you say, but I will defend to the death your right to say it"
Space lawyer here, writing in personal capacity hence posting as AC.
The OST already has provisions guaranteeing a right to non-interference with legal activities in space (as opposed to say militarization, which is illegal under the OST).
What the FAA is proposing is merely a mechanism to enforce these existing rights under current regulatory regimes. There are no cops, courts, or administrative agencies in space - in fact there is no room under current treaty regimes for such entities to exist, since they all would entail claims of sovereignty, which are strictly forbidden. And even if such things were theoretically possible, they are impracticable for the foreseeable future.
So what we are left with is a situation where any jurisdictional claims and regulatory authority are explicitly tied to and derive from the citizenship of the people in space, the ownership of man-made objects launched into space, and the licensing authority of the states from which spacecraft are launched.
In the U.S., the FAA already is the regulatory body charged with licensing space launches. In the absence of an explicitly-defined specialized body in charge of enforcement of U.S. laws/regulations, including treaty-derived ones, with respect to space activities under US authority, the FAA has said that they will step in and leverage their existing status as the U.S. launch regulation authority to also fill this role in space as well.
Whether the FAA making this claim is appropriate or allowable under U.S. administrative law is a separate question from whether the U.S. has the authority to regulate its citizens and property in this way, which it certainly does. In fact, nothing is to stop the U.S. from writing laws that allow it to fine or otherwise punish strictly foreign entities, provided they interfere with activities that do fall under U.S. jurisdiction. Of course these would have to be enforced in American courts, but given the extremely international nature of most private organizations operating in space, that is not necessarily a huge barrier. As far as interference committed by one completely non-U.S. entity against another non-U.S. entity, the U.S. would likely have zero jurisdiction or authority, except the remote possibility that they would entertain such a private tort suit between them under the Alien Tort Statute - pun not intended!
As it stands, the FAA's main weapon to enforce these kinds of claims would be to merely deny launch licenses to entities it saw as violating the right to non-interference. This is by no means a trivial weapon, since it effectively denies any assistance from U.S.-regulated satellite companies, ground control, etc. etc., and most countries would be disinclined to pick a fight with the agency that could in theory cut off all of their air traffic to and from the U.S. But this is nothing resembling an attempt to create property rights in space. It's merely a clever way to enforce already existing and widely-recognized rights in absence of a better enforcement mechanism. And really, who else is there to do this kind of thing currently? NASA? They are in the exploration business, not the regulatory business. Until Cognress steps in to clear things up, the FAA is the logical choice to handle this kind of thing.
Incidentally, this is not a new idea - we discussed this very idea at length in a space law seminar I attended at a very well-known D.C. law school I attended few years ago. Frankly, I'm rather surprised that it's taken this long for the FAA to publicly articulate it.