Can you own the moon?

John Locke in Space

the moon

Billionaires are making regular trips to space for a reason: they want to harness the potential economic payoff. We need to come up with a framework for property rights in space that will benefit all of humanity, not just the super rich, argues Rebecca Lowe. Under her proposal - inspired by philosopher John Locke - people could earn the right for the exclusive use of plots of moon land, as long as this advances certain moral aims.

Revisiting the Outer Space Treaty of 1967 that bans any appropriation of planetary or lunar land might be worth doing, writes Tony Milligan. But using John Locke’s 17th century framework is not the way to think about property rights in space. The Solar System is a very different place from Earth, and a whole new type of economy would need to be invented for it.

In two separate articles, Rebecca Lowe and Tony Milligan put forward their arguments on how we should think about property rights in space.

 

Rebecca Lowe

Privatising the moon’ is a meme, or at least a caricature. It’s used to emphasise the unrelenting greed of capitalists: ‘They’d sell off the moon if they could!’. Cowboys on Earth. Cowboys in space. And fair enough, rocket-man billionaires are rarely out of the news these days.

Nonetheless, these billionaires give us good reasons to think hard about property rights in space. Firstly, it’s not enough just to state that doing something — even as outlandish sounding as privatising the moon — is wrong. You need to be able to explain why. What if humankind needed to escape Earth? Would it be fundamentally impermissible to try to inhabit the moon, in such a situation? We’d struggle without any recourse to private property.

Beyond that, it’d be nice to think that these billionaires are spending their money on rocketships solely for the intrinsic value of knowing more about our universe. But presumably a large part of them taking on the serious financial and reputational costs of space exploration is a massive potential payoff. And that payoff is something that could be harnessed for the good of all humankind.

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The more you think about it, the clearer it seems that a morally-justified system for assigning and governing property rights in space could present vast benefits.

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The more you think about it, the clearer it seems that a morally-justified system for assigning and governing property rights in space — in land, in other resources, even in the vacuum itself — could present vast benefits. These potential benefits extend far beyond financial rewards for people becoming owners under such a system, and the other direct and indirect beneficiaries of these ownerships. They also relate to the provision of incentives for the responsible stewardship of space, as well as opportunities for new scientific discovery and ‘democratised’ space exploration.

The value of private property

Of course, this doesn’t mean that we shouldn’t consider potential costs. Debate rages about property-related injustice and unfairness on Earth: not least regarding the decisions and actions of our forebears, relating to the acquisition of property rights, the distribution of access to natural resources, and the colonisation of areas already serving as the livelihood and homes of indigenous peoples. Debate continues about the future of Earth, too: about how we should act now if we are to conserve our planet appropriately, for its own sake, and for future generations. All this reminds us of the serious costs that property-rights regimes can impose, and the importance of ensuring that legal claims to ownership are morally justified.

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The ways in which human beings meet some of their most urgent everyday needs involves something that’s hard not to see, in a basic sense, as individual ownership.

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Nonetheless, most people see property as a basic human need, the focus of a natural human practice, an inevitable part of life. And private property — in the sense of individual ownership — is typically deemed not only to improve standards of human welfare, but also the condition of many objects of ownership. There’s a vast multi-disciplinary literature describing private property’s instrumental value. This focuses on the stability that clear and secure property-rights regimes typically engender. It also addresses the crucial role private property plays within exchange and trade, which, themselves, have helped to drive global progress in domains including education and healthcare.

Private property is about more than efficiently meeting wants and needs, however. There’s also the intrinsic value of individual ownership — reflected in the security and belonging that derive particularly from home and land ownership, not least within a community. Individual ownership enables human beings to exercise their basic capabilities, and live in accordance with human dignity. Of course, there are other valuable types of property arrangement. But the ways in which human beings meet some of their most urgent everyday needs — not least the need to eat things — involves something that’s hard not to see, in a basic sense, as individual ownership.

The minimal conception of individual ownership I’m interested in for current purposes, therefore, is the relation that a particular person has with a particular thing, of which a necessary condition is that this ‘owner/owned-thing’ relation is exclusive and exclusionary. And, on which, this relation’s exclusive and exclusionary nature is protected by a moral right. If you believe that individual cavemen and cavewomen had some kind of obligation-generating claim to the particular bits of land they lived and depended on (which meant there were certain things that only they, exclusively, could do in relation to that land, to the exclusion of others), then you believe in this kind of non-legal, moral, property right. Now, none of this prevents an owner from choosing to open up an ownership relation — by offering a slice of their apple to a friend, for instance. It does however, I think, get to the heart of the idea of private property.

Space Property: It’s not what you think

To return to extra-planetary matters then, what might a justifiable space property-rights regime look like, on this narrow conception of ownership? What can we learn from the mistakes of the past to get matters of property right, this time, whilst — with regard to space land — we still have the chance to start pretty much from scratch? A recent think-tank paper I wrote addressed these questions.

If you’ve read any of the surprisingly extensive press coverage around my paper, however — or had some of this coverage tweeted into your timeline by Bernie Sanders — then you might be disappointed to learn that I didn’t actually propose selling off the moon. For a start, premised in the framework I set out at the end of the paper is the idea that nobody, morally, owns the moon. I also discuss the way in which, whilst much relevant space law is interpreted in competing ways, it seems clear that nobody legally owns the moon, either. Despite various nations’ attempts to press for change, the national appropriation — and by effect, the individual appropriation — of at least the ‘physical domain’ of space, remains outlawed by long-standing treaty.

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If you’re hoping my framework will help you to acquire the whole moon to hold in perpetuity for your mega-corporation, you’ll be disappointed.

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What I try to do in my paper, however, is look past the current legal situation, and consider what might be a morally justified way of governing individual access to space land, on a rights-based liberal account. This is not least because there’s a convincing egalitarian argument that the arbitrary oppression of opportunity that some individuals already face simply by being born in, or otherwise inhabiting, particular countries shouldn’t be entrenched further through a ‘nation’-focused approach to the governance of space opportunities.

The primary problem I address, therefore, is how to avoid the perils of ‘first come first served’. This is the problem regarding the way in which it seems wrong (and a missed opportunity, all round) to prevent individuals from realising any right they hold to acquire property. But that it also seems wrong if their doing so precludes others from ever being able to do so themselves. Of course, there’s also that serious problem of how we get to the point of individuals being legally able to acquire space stuff in the first place. But whilst I discuss some relevant options, I’m happy largely to set that problem aside for lawyers.

To get to practicalities, however, if you’re hoping my framework will help you to acquire the whole moon to hold in perpetuity for your mega-corporation, then again, you’ll be disappointed. Rather, I set out a highly conditional Georgist-type system to enable the temporary rental of plots of moonland. Basically, individuals compete for the exclusive and exclusionary use of these plots, through a market-based competition consisting in the payment of rent. The term ‘rent’ isn’t quite right, however, because as above, I conclude that nobody owns the moon. Rather, ‘renters’ pay their ‘rent’ into a fund that is used to enable other individuals to compete against them for plots — on the grounds that everyone has an equally strong potential claim, but only a tiny number of highly-privileged people would currently be able to realise this potential.

The size of the plots, and the rate of the rent, is variable dependent on supply and demand. Thanks to Henry George, renters own in full the profit they make from the use of their rented land. And they can use it for any morally-justified purpose. However, certain stringent conditions apply, relating particularly to the concerns of ‘spoilage’ and urgent need — concerns that betray the Lockean theory underpinning the paper’s approach. Now, the rent is paid into a fund that, as above, generally serves to enable an increasing number of individuals to compete for plots of moonland, whilst — partly through a rebate system — helping to meet current urgent need, and to conserve land (on the moon and Earth).

On my system, therefore, Elon and Jeff will only be able to access moon plots in an exclusive and exclusionary manner if their payments, minimally: a) help to alleviate urgent human need; b) help to conserve land; and c) effectively ensure that increasing numbers of people gain the opportunity to compete against them for the use of these plots. Moreover, as part of the spoilage condition, renters must not destroy or remove parts of moon land, or the natural resources that form other parts of the moon or are found on the moon.

So, I’m afraid my paper isn’t truly about privatising the moon, and I don’t do anything like estimating the financial value of owning space stuff. I do point out, however, that thinking about space in this way could help us to assess the adequacy of ongoing approaches to property on Earth. Therefore, whilst I don’t expect the people making fun of my paper on social media to have read it, I think that if they did, they might find it less friendly towards the current economic order than they presume. 

 

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Tony Milligan

For several years now, there has been a phantom conflict going on between two political legacies of the 20th century, each trying to make headway within discussions about space futures. On the one hand, there are fierce opponents of private sector activity in space. Particularly when it is associated with billionaires like Jeff Bezos and Elon Musk. On the other hand, there are free marketeers who see space as an opportunity to base democracy around the free market, rather than treating the market as one democratic institution among many.

Both tend to radically over-estimate the role of the space private sector compared to the role of national space agencies which remain the primary players. The contrast is not even close. Neither Elon Musk nor Jeff Bezos are ever likely to be in a position to compete with the Chinese state. Nonetheless, the conflict goes on. One of the latest installments is the Adam Smith Institute paper Space Invaders: Property Rights on the Moon by Rebecca Lowe. This is more interesting than many of the routine contributions because it focuses upon the very idea of property rights in space, and the kinds of ethical and political principles that might underpin any replacement for the Outer Space Treaty (1967) which treats space as the common heritage of humanity, and currently outlaws the appropriation of planetary or lunar real estate. As a point of international law, nobody can own the moon.

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We fall into a trap if we think of lunar resources as analogous to the kinds of resource that Locke was typically concerned with.

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What we get in Lowe’s paper, as the way forward from the OST, is an application of John Locke’s 17th century political theory to a partitioning of the lunar surface. Or, at least, the application of a version of Locke’s account of how private property arises, is transferred and operates to the benefit of society at large. Lowe’s belief is that “a clear, morally-justified, and efficient system for assigning and governing property rights in space – in land, in other resources, in the vacuum itself, and in anything else that might be found -would present vast benefits”. I have no particular opposition to private property rights, but believe that we cannot run plausible arguments about the distribution of space resources independently of a more detailed understanding of the resources in question.

We fall into a trap if we think of lunar resources as analogous to the kinds of resource that Locke was typically concerned with. The lunar resources that matter most are not laid out like large tracts of open and unworked land that might be divided up fairly among settler farmers whose claim will then be reinforced by their working of the land. Strategic lunar resources tend, instead, to be far more concentrated.

Here, we might think of lunar concentrations of Thorium, Uranium or Helium 3 for use in fusion reactors. Or we might think of the Peaks of Eternal Light. Highly concentrated resources in the South Polar Region, with raised crater rims sitting in near constant sunlight (useful for solar power), possibly shading frozen water and volatiles. An ideal combination, but heavily localized. A good-sized peak will be equivalent only to a narrow strip a few meters wide across a regulation-sized football field. It is no coincidence that the majority of lunar missions planned for the present decade are disproportionately targeting the South Lunar Pole rather than spread across the lunar surface.

Rather than dividing up tracts of land in the manner of the New World, we might do better to think of dividing up an art gallery. Someone will get bits of carpet from the stairwell, someone will get a cupboard, and someone will get a Picasso or a Cezanne.  Locke’s world is an obvious go-to reference point for transitioning from no-property to property, because it makes it seem like there is some clear, morally justified grounding for the resulting distributions. In the case of the Moon, nothing is so clear or readily justified.

An oddity here is that it is not at all obvious that private property is a great concern for prospective space miners. Those involved in Planetary Resources before its demise in 2020 were concerned more with security of tenure than individual property rights, i.e. is being able to complete licensed extraction projects. What matters for any actual mining operations is always likely to be the licensing system, rather than Lockean self-realization through property. This is also the way that space law is going, with extraction rights being put into law in the US back in 2015, and other countries such as Luxembourg, Japan and India following suit. The legislation and direction of travel is also flagged up in Lowe’s paper.

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Locke’s world is an obvious go-to reference point for transitioning from no-property to property, because it makes it seem like there is some clear, morally justified grounding for the resulting distributions. But in the case of the Moon, nothing is clear or readily justified.

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The result is that when we drill down into the detail of the paper what we find is that “the status of the property-right-holder amounts more to the status of a renter than the status of a full owner”.  John Locke will not be going into space any time soon. Instead, the rhetoric of property boils down instead to something other than actual property because Lowe gets the point about the obvious benefits of licensing over property. But the paper does not come to terms with the implications of licensing, and its larger departure from the moral universe of Locke. Two implications suggest a large departure.

Firstly, licensing is better adapted to a multi-player environment rather than a binary world of states and individual property owners, driven by much the same human nature. There are multiple, legitimate claims that may be made in relation to the Moon, by agents whose primary concern is science, environmental protection, state presence, political equilibrium between competing powers, and yes, private financial concerns. Trying to flatten out this uneven terrain of claims by appeal to any single institution (such as property or quasi-property) looks unrealistic.

Secondly, accessible space resources are finite, not infinite. It is far from obvious that we will ever be able to access resources beyond the Solar System. And, for practical purposes, it is also a closed system. Little, if anything, comes from the outside. This Solar System is everything that we and future generations may ever have to work with. And much of it is made up of gas giants whose gravity wells may be too deep for us to use in any large-scale manner. We have far less to work with than is sometimes imagined. One Moon, one Mars, a few smaller bodies and the asteroids.

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The kind of economy need for space is something to be invented, rather than transplanted from the past and John Locke’s theory of property.

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The upshot, and a core point set out by Martin Elvis and myself in our 2019 paper How much of the Solar System should we leave as wilderness? is that the trajectory for a space economy will include either a dangerous exhaustion of new resources, or an eventual transition to a steady-state economy. Not a 20th century market economy geared to indefinite expansion, but a different kind of economy. One within which various sorts of regulated but extensive markets will no doubt operate, but without reliance upon an imagined endless stream of new resources, or new places where settler owners might be set down. Given the sheer unevenness of the distribution of strategic resources in space, a steady-state economy of this sort would have to have different sets of entitlements, spread across multiple sorts of players who relate to the finite resources of the Solar System in a variety of ways. This kind of economy is something to be invented, rather than transplanted from the past and John Locke’s theory of property.

Recognition of the ultimate need for such an economy is not new. Almost all of the great classical political economists got the point. David Ricardo, John Stuart Mill, and Adam Smith all recognized that there were physical limits to growth. Economic expansion, under capitalism or anything else, would eventually end. Locke never quite came to terms with the problem. Nor did Marx. Both envisaged endless worlds to conquer. We do not have such worlds. And so varied are the ones that we can access, that a single fundamental grounding norm concerning property or its abolition makes little sense. We cannot even apply a single metric to tell how close we are to resource exhaustion. On planets, surface area will sometimes be a good measure of resource use. But not at any icy poles, where multiple systems may be needed. In the asteroid belt, mass will be a better measure, but it will not work on Ceres or Vesta where surface again is crucial.

No one measure will work, much less a single norm for claims and use. Plurality is our best option. It comes close to being our only option. And when it comes to the Moon, we would be wise to start as we mean to go on, by recognizing a plurality of claims upon the same resources and the need to protect as well as use.

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