Who can own the moon? Or an asteroid? Or a homestead on Mars?
According to the Outer Space Treaty of 1967, no nation can claim sovereignty over any part of any celestial rock. But the treaty is less clear on what a company or an individual can do in space — possibly because in the 1960s, the drafters of the treaty might have thought it hard to imagine a space race led by entrepreneurs rather than governments.
For companies today hoping to set up a moon colony or to mine asteroids for platinum, the ambiguity is one more hurdle in attracting investors.
“There has been a chicken-egg conundrum to create a lunar legal framework,” said John Thornton, the chief executive of Astrobotic Technology, a Pittsburgh company that hopes to become the first private company to land a robotic spacecraft on the moon and win the Google Lunar X Prize. “How do you get businesses to invest in the moon if there is no legal framework versus how do you get a legal framework if there are no business operations?”
The Federal Aviation Administration, which licenses private space launchings in the United States, has now provided some clarity.
In reply to a request by Bigelow Aerospace of North Las Vegas, Nev., one of those space entrepreneurs, the F.A.A. said it would make sure that American companies did not interfere with one another on the moon or elsewhere.
“We recognize the private sector’s need to protect its assets and personnel on the moon or on other celestial bodies,” wrote George C. Nield, the agency’s associate administrator for commercial space transportation, in a letter dated Dec. 22. The Reuters news service reported on the letter last week.
Bigelow is developing inflatable habitats for outer space, and this year, a small Bigelow structure is to be added to the International Space Station. In the coming years, it plans to launch larger inflatables as private space stations to be leased by companies or nations.
In December 2013, Bigelow asked the F.A.A. to review a proposal for landing one of its habitats on the moon for use as a lunar base. Bigelow said it might conduct scientific research or commercial endeavors like mining. Robert Bigelow, the company’s founder, has said he is aiming to establish his lunar base around 2025, and the company wanted to start clarifying issues.
“It’s best to avoid these problems now, before operations begin,” said Michael Gold, Bigelow’s D.C. director of operations and business growth.
In its proposal, Bigelow suggested that the F.A.A. leverage its authority to review payloads and license launchings. In essence, Bigelow requested that the F.A.A. agree not to issue a license to another American company that would land at the same place.
The action does not bestow ownership of the moon on Bigelow or anyone else, and the F.A.A. does not have jurisdiction over foreign companies. But with the F.A.A.’s issuing licenses to American companies, Mr. Gold said the State Department could more easily work out agreements with other countries regulating their private companies.
“If you don’t have that agency and that paper, then it becomes a Wild West scenario,” Mr. Gold said. “This decision has real immediate and real impact on investors who require security and predictability.”
Mr. Gold said the F.A.A.’s decision did not violate the Outer Space Treaty and actually helped fulfill the United States’ obligations under the part of the treaty that states, “The activities of nongovernmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate state party to the treaty.”
What is less clear is whether private companies can profit from the moon or other places in space. A follow-up international agreement in 1979, the Moon Treaty, emphatically said no, banning ownership of the moon and other celestial bodies, and declaring that the moon’s riches were to be shared among nations, especially developing countries. But many nations, including the United States, Russia and China, have not signed the treaty.
In Congress last year, Representatives Bill Posey, Republican of Florida, and Derek Kilmer, Democrat of Washington, introduced a bill called the Asteroids Act, which would give companies ownership over any material they mined from asteroids. At least two American companies, Planetary Resources and Deep Space Industries, have announced plans to mine asteroids. After a House subcommittee hearing in September, the bill did not progress, but a spokesman for Mr. Posey said it would be reintroduced this year.
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