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Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership (Space Regulations Library) Hardcover – December 9, 2008
"Neverworld Wake" by Marisha Pessl
Read the absorbing new psychological suspense thriller from acclaimed New York Times bestselling author Marisha Pessl. Learn more
From the reviews:“Virgiliu Pop, in his contribution to Volume 4 of the Space Regulations Library brings to bear centuries old real property legal theories with the modern day space race. … Pop’s work delves deep into the chasm of one of the most underdeveloped areas of property law … . Ultimately, Who Owns the Moon! deserves a close inspection by anyone interested in the fascinating interplay between the law and what was once science fiction but may soon be reality.” (Chris Kalantzis, Journal of Space Law, Vol. 37 (2), 2011)
From the Back Cover
This work investigates the permissibility and viability of property rights on the celestial bodies, particularly the extraterrestrial aspects of land and mineral resources ownership. In lay terms, it aims to find an answer to the question "Who owns the Moon?" After critically analyzing and dismantling with legal arguments the trivial issue of sale of extraterrestrial real estate, the book addresses the apparent silence of the law in the field of landed property in outer space, scrutinizing whether the factual situation on the extraterrestrial realms calls for legal regulations. The legal status of asteroids and the relationship between appropriation under international law and civil law appropriation are duly examined, as well as different property patterns – such as the commons regime, the Common Heritage of the Mankind, and the Frontier paradigm.
Virgiliu Pop is one of world's specialists in the area of space property rights. A member of the International Institute of Space Law, Virgiliu has authored several acclaimed papers in the field of space law and policy, and was interviewed by prestigious media outlets as diverse as New Scientist, Space.com/MSNBC, The Space Show, La Tercera (Chile), Ta Nea (Greece), Geo Magazine (Germany) and several publications in his native Romania.
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The book begins with a chapter about spurious claims to ownership of the moon, planets and space by earthbound charlatans who could never take possession of their supposed realms. The next three chapters focus on the nature of landed property rights in outer space, including the sources of law, the subject matter of such law (e.g., the question of what is a celestial body), and an exploration of the OST's prohibition against sovereign appropriation. While I thought the first chapter went on a bit too long (VP had apparently previously published a book on the topic), I found this first 50% or so of the book to be generally helpful. The reader should be forewarned, though, that much of the analysis is based on civil law notions of property, with common law concepts dragged in only when convenient. You should also brush up your Latin, since phrases like "de lege lata," "res nullius" and a host of others are tossed about without much concession to the uninitiated.
Nonetheless, some portents of things to come were visible even here, starting with the straight-faced references to the concerns of "the entrepreneurial class" (@32-33), and some logically flawed arguments. In discussing the distinction between immovables (land) and movables (usual forms of personal property), VP tries to argue that some celestial objects -- such as a captured comet or asteroid -- could perhaps be treated as movables. Quoting a British land law treatise, he claims that land is distinguished from other objects in commerce because "[(i)] `it is immovable, and cannot be physically transferred from one person to another,' and [(ii)] `it is everlasting ... [t]he owner of land ... [cannot] in its legal sense destroy it.'" (@ 50-51; ellipses in original.) This is flawed on both counts. First, a building can be destroyed in its entirety, yet is is considered immovable property. Second, all celestial objects, including the Earth, are moving -- indeed their positions are very uncertain. (Orbits are idealizations: they undergo constant perturbations, and due to the Solar System's own motions, the Earth traces out more something like a scalloped line than an ellipse, traveling more than 50 orbital diameters during the course of 1 year.) VP does eventually allude to some of these facts separately later in the book, but doesn't acknowledge that they undermine his case for "movable," i.e. appropriable, celestial objects. He also ignores a case that global warming may create later in this century: current "low-tide elevation" features that become submerged even at low tide. According to the Law of the Sea treaty, when that happens, sovereignty in the LTE will be extinguished. (In principle, the owner of a small island or atoll could bring this about deliberately, as well.) So immovables can't be distinguished by indestructibility; but they don't transform into movables, either.
The quality of VP's argument really starts to plunge, however, in the second half of the book. The fact is that current law ("lex lata," as VP calls it) does not allow sovereignty over "celestial bodies," does not clearly define "celestial bodies," and is not clear about the permissibility of the private commercialization of minerals, etc. extracted from any naturally-occurring celestial objects (see, e.g., Lyall & Larsen, "Space Law" (Ashgate 2009) at 193ff.) On the last point, VP states in no uncertain terms that "the right to commercialize extraterrestrial material has entered into customary international law" (@150) -- on the strength of the auctioning in 1993 of *200 milligrams* of lunar material (@140-141). But that at least is a rational argument. The same cannot be said for the myth-filled narrative about how democracy was spread through homesteading and property rights on the American frontier (Chapter 6); though to be fair, VP qualifies his encomium of the American property regime with a libertarian warning that property taxes threaten liberty even on Planet Earth, a mistake he would not want to be repeated in outer space (@117-118). Things get even sillier in the next chapter, with VP's energetic efforts to equate the Moon Agreement's reference to the "common heritage of mankind" (CHM) with "Marxism." For example, he seems to work from a simple syllogism:
α: the Moon Agreement prohibits private ownership of land on the Moon;
β: the Soviet Communists prohibited private ownership of land
∴ the Moon Agreement advocates Communism,
when he notes that "Article 11 of the Moon Agreement is in resonance with the 1848 Manifesto of the Communist Party" (see @ 124-127). Shortly thereafter he says: "Since the CHM concept lies on the left of the political [sic] spectrum, it is favored by those who support, with various degrees: [¶] collectivism rather than individualism; [¶] internationalism instead of nationalism; [¶] cooperation more than competition; [¶] the economic interests of the have-nots before those of the haves; [¶] economic equality more than economic liberty; [¶] redistribution of wealth instead of acceptance of inequalities; [¶] equity as opposed to efficiency, or fair outcome as opposed to fair process; [¶] interventionist versus laissez-faire economics; [¶] bigger versus smaller government. All these common traits of socialist ideology can be found in the CHM paradigm." No wonder one of the few countries to have ratified the MA to date has been that red-hot bastion of socialism, Australia.
But I expect some space enthusiasts of an atheistic or at least non-Christian bent will be even more annoyed by VP's reliance on Christian theology in Chapter 5. He justifies his homesteading proposal with a 1956 address by Pope Pius XII declaring that G-d "did not intend to limit [man's] efforts his efforts at conquest when He said to him: `subdue the earth' (Gen. 1:28). He confided all creation to man" (@91, 122; I quote from an official translation of the speech, not the secondary source used by VP). And he invokes the New Testament Parable of the Talents (the version found in Matthew 25:14-30) in support of the proposition that "extraterrestrial realms are not to be left pristine in their entirety, the trustees [i.e., we humans] being under the obligation to make the best out of the extraterrestrial realms, even if this means their exploitation and privatization" (@90-91).
Let's examine the parable a little more closely: A master entrusts respectively five talents, two talents and one talent of silver -- a lot of money in each case -- to each of three servants (actually, the original Greek word, δουλους, means "slaves"). He then departs on a journey. When he returns and asks for his money, the first two servants each give him double what he'd left with them, after investing it; they are praised lavishly. The third, who had received only 1 talent of silver, returns to the master exactly what he'd been left with, having buried the amount during the master's absence. The third one explains: "`Master, I knew you to be a hard man, reaping where you did not sow, and gathering where you did not winnow;  so I was afraid, and I went and hid your talent in the ground. Here you have what is yours.'  But his master answered him, `You wicked and slothful servant! You knew that I reap where I have not sowed, and gather where I have not winnowed?  Then you ought to have invested my money with the bankers, and at my coming I should have received what was my own with interest.  So take the talent from him, and give it to him who has the ten talents.  For to every one who has will more be given, and he will have abundance; but from him who has not, even what he has will be taken away. ...'"
VP's interpretation is based on the idea that one is obligated to not keep treasure in the ground, but to make a profit on it even by usury, and to reward the rich at the expense of the poor. (Cf. VP's list of "socialist traits," supra.) I'm not a Christian, but when I read the parable even I was shocked that this seemed to be the exact opposite of what I'd understood Jesus to be about. After all, usury was illegal under religious (i.e. Jewish) law in Biblical times and Jesus was on the side of the poor, I'd thought. It turns out while VP's literal reading of the parable seems to be popular among some Americans, that reading is flat-out denied by others (see, e.g. the discussion in the "Journey of a Lifelong Disciple" blog entry for 2013 June 7, and a 2003 analysis by Dr. Margaret Ralph), or replaced altogether with allegorical and non-commercial readings (see various other Christian blogs: Confessing Congregations, Till He Comes, etc.). Anyway, interpretive ambiguities aside, VP isn't consistent in his use of the parable: whereas his slave-owning hero in the parable is proud to reap where he doesn't sow, VP later equates that practice with the "Marxist" CHM doctrine (see title of Chapter 7).
Even some of VP's more strictly legal assertions may arouse skepticism. In several places he declares "property boils down to control over access, in other words, to the right of excluding others from using a good" (@84; see also @65). Here VP ignores property rights such as servitudes (more often called easements in US law), which may limit what may be done with property but that nonetheless are nonexclusive. He also claims more than once that while immovables are "subject to the lex situs of outer space, ... movables [are] subject mainly to the lex domicilii of the person who caused their removal" (@135; see also @139). He applies this reasoning to infer that mining an asteroid, etc. can create property rights in the extracted material under the municipal law of the extractor -- though he doesn't address whether one needs permission to engage in mining activity at all, as if the transformation from immovable to movable occurs by magic. In any case, his statement cannot be correct as stated. Consider what he tells us in a digression about the law of meteorites (@148-150): in the UK, a meteorite belongs to the owner of the land on which it comes to rest, whereas in Japan it belongs to the finder, and in India and Argentina it belongs to the state. So if a meteorite lands in an English field, a Japanese tourist really is free to remove it and claim it as her own, while an English tourist is not? (BTW as to future law, VP proposes a rather expensive harmonised solution to the meteorite issue: whereas currently no state accords a right to more than one private party, he urges that every state should compensate *both* the landowner *and* the finder. And to think he objects to reaping where one doesn't sow.)
More generally, VP's legal arguments rely on Roman law and on John Locke's theory of appropriability of res communis. While I personally found the Roman law discussions intriguing, there isn't any a priori reason why it should be determinative of anything. After all, Roman law thought people could be owned too, as did many other legal systems until relatively recently. Analogies to older law might be helpful if there is a compelling need to identify current law, but there's no reason to be imprisoned by them, and all the less so when it comes to lex ferenda (the law of the future). But even when it comes to analogising from the past, VP neglects many alternative views of property from Christian history that are antagonistic to his thesis (see, e.g., Peter Garnsey's "Thinking About Property" (Oxford UP 2007)), to say nothing of notions of property from non-western traditions.
As mentioned above, the book's bibliography is helpful, though the index is too general to be useful. Terms like "appropriation" or "rights" are followed by a sequence of 50 or more page numbers without any more analysis; so one looks in vain for, say, VP's notion of "enterprise rights," which he no sooner proposes than he assumes to exist (@ 138, 150). While the book is useful in part, meriting the stars given above, this is an important topic that still awaits a more dispassionate and rigorous analysis. One can only hope such a work will be available before some billionaire sets up a vanity Moon colony or snags his own asteroid. I certainly wouldn't bet on that, though: for all its loose reasoning, this book's conclusions no less than its price are all too congenial for the ten-talents crowd.