Lunar Loopholes, or Pie in the Sky?
Lunar real estate agents can argue until the moon is blue that the 1967 Outer Space Treaty applies only to countries; legal realities don't rise and set on their interpretations.
As of February 2012, the Outer Space Treaty applied to around 125 of the 193 United Nations member states, but there's more to international law than treaties and agreements, and there's more to global relations than mere legalities. The fortunes of nations wax and wane according to political, military and economic realities.
Countries not party to the space treaties -- or nations that are party to them but opt out later -- will pay a considerable political price should they try to force the issue of moon ownership and use. Moreover, far from securing the rights for themselves alone, such countries would pave the way for an international lunar land grab.
The 1984 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, aka the Moon Agreement, came about because the language in the Outer Space Treaty that dealt with private ownership needed to be locked down. Few major space powers are party to the Moon Agreement, however, and none are signatories. In fact, France, Guatemala, India and Romania have signed but not ratified the document -- meaning they endorse it but aren't legally bound by it. Only 13 countries worldwide are legal parties to the agreement [source: United Nations].
For those fond of reading into silences, like our man Dennis Hope, such lackluster support is tantamount to an endorsement of private land rights in space -- which would be a dandy theory, were it not for two minor matters: First, the 1967 Outer Space Treaty already covered this legal territory; second, space already falls under a higher legal standard.
"As it happens, nonappropriation of outer space is considered to be a legal principle of jus cogens from which no derogation is permitted," says Ram S. Jakhu, associate professor at the Institute of Air and Space Law at Montreal's McGill University.
The term jus cogens (Latin: "compelling law") refers to absolute moral principles that trump normal international rules, much in the way that the U.S. founding fathers regarded life, liberty and the pursuit of happiness to be higher rights, both inherent and inalienable. It's a sort of value system that the international community invokes when it needs to bring parties to justice for slavery or piracy, or to force a national leader to stand trial for genocide. Derogation means the partial repeal or diminishment of a law.
Put it all together and what does it spell? A bar against anyone infringing on our shared natural rights to the moon and its bounty. Think of the moon like the sea: Everyone can use it, but no one can own it.
Jus cogens has stirred up controversy almost since its first official recognition in the 1969 Vienna Convention on the Law of Treaties. Someday, a country, corporation or individual will test its limits, and the dispute will be settled in the International Court of Justice, Permanent Court of Arbitration or by some other peaceful means.
Such negotiations only constitute a stopgap measure, however; commercial pressure will ultimately carry corporate concerns to the cosmos, and no law or principle precludes the eventual exploitation of outer space by private parties.