Another proposal for dealing with the Outer Space Treaty

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Link here. The author has made an interesting analysis of my earlier essay on this subject, and come up with what I think is a very intriguing and most encouraging idea:

Government establishes a legal framework for enforcing law. So, rather than allow nations to make claims of territory, let us instead allow private enterprises to go to the Moon or elsewhere, stake a claim, and then, to establish a legal framework for resolving any disputes that arise, choose the government under whose legal jurisdiction their claim will reside. No governments would appropriate territory. They would merely be lending their courts to render judgments on legal disputes arising outside their territories. That would seem to satisfy Article 2. This scheme would not require a new Treaty but could probably be implemented via United Nations resolutions. [emphasis in original]

I actually like this, as it puts the power in the hands of the citizens or companies, allowing them to pick the nation to which they wish to align.

What I find most encouraging however is that the subject of the Outer Space Treaty is now becoming a major issue worth discussing, by many others. I have my ideas, others have theirs. Either way, the issues and weaknesses of the treaty are now being debated, and people are proposing solutions. In the fifty years since the treaty was signed it has previously been impossible to generate this much discussion on this issue. (Believe me, I have tried.) That others are now responding and proposing alternative approaches means that maybe the time has finally arrived where this problem will be dealt with.



  • LocalFluff

    That’s how it works in shipping and business overall. You pick court as part of the contract you write. And these are private courts. Some countries, like where I live,k have no public courts, instead political committees without any knowledge about the law, so no business writes a contract of importance without appointing a private court to take care of any arbitration. These courts are not national, they are international and have their own characteristics. So governments would not need to be involved at all.

    The big problem is that you might get into conflict with someone that you have not entered a contract with. How would they then agree upon what court to do the arbitration? If the Chinese government ruins you space mine, it will anyway be hard to get a just arbitration.

  • wayne

    Have to go with the Homesteading Act, as partial Model, and definitely not Railroads. The folks at The Federalist should know better.

    “The Railroading of the American People”
    Lecture 2 of 13, from:
    The American Economy and the End of Laissez-faire; 1870-WW-2
    Murray Rothbard
    (embedded player or download, 92 minutes, in his own voice)

    “The railroads experienced both enormous growth and enormous government intervention. Land was closed off from settlement, causing farmers to oppose the privileged railroads. Markets were skewed. Waste and inefficiencies were high. Graft and corruption were rampant. Only the Great Northern by James Hill was built with private monies. It became the of the few transcontinental railroads not to go bankrupt.”

  • LocalFluff

    We only need a government to enforce that concept you describe with all violence that is required. Which must mach the strength of the enemy. If they have nukes, we must also have nukes and use them first in order to win.

  • wayne


    Gotta go with a modified Homesteading Act type of Model, preferably one-paragraph in length, maximum.
    If it’s one of these 1,200 page document’s composed by a committee over 18 month’s, and requires a team of lawyer’s to translate– it would just be “situation normal all fouled up.”

    What’s the old expression? “Possession is 9/10ths of the Law.”
    (and, in the case of controlled-substances, possession is 10/10th’s and ya’ go to jail.)

    One thing however, is certain:

    “it is very cold, in spaaaace”

    (that’s going to require a lot of Carbon…but the EPA says Carbon is a pollutant…)

  • Edward

    Both the Homesteading Act and the Pacific Railroad Acts were based upon the territory already being US sovereign territory. The problem to be solved is one where a private citizen or corporation claims mining rights, territory, or both. Such a claim is similar to a fishing boat owner claiming that he is the only one allowed to fish in a specific area of international waters. I am uncertain as to how the Space Act differs from international waters.

    Even the book “The Martian” describes the astronaut as a space pirate, because he is travelling from one place on Mars to another in an absconded rover, where the territory of either place is unowned international territory but the structures at each location are owned. The description in that book is similar to someone taking a ship’s dingy without permission to travel international waters to another ship.

    The only thing that prevents the taking of materials found in space as being an outright crime is that there is precedence. Both the US and Soviet Union have gathered lunar soil and rocks and claimed them as property without any complaint from the international community.

    Perhaps the most applicable model is whatever oil platforms in international waters use. However, it looks like that model is less than perfect.

  • Robert Pratt

    Still leaves the problem of competing claims if parties choose to use jurisdictions which differ and which recognize no supranational court or similar. However that could be remedied in most cases by treaty outside the OST.

  • LocalFluff

    “Both the Homesteading Act and the Pacific Railroad Acts were based upon the territory already being US sovereign territory.”

    Indeed. That’s why the US must claim all of space as its territory and destroy everyone who challenges this fact. For purpose of deterrence, they could name their weapons systems after the indians they’ve already massacred for exactly that same reason. Just keep doing what works. The US has already established a very strong brand name in this. If space, like the Wild West, is to be civilized, we have to bring guns and engines to it.

  • Max

    I also was thinking along the same lines, ocean treaties would be similar to space treaties. There was an series on TV called SeaQuest (93 to 96) dedicated to what problems would arise as people settle in the oceans. With over population covering the land masses in the future, they would turn to the oceans as the new frontier. Water covers 73% of the earth that are under no jurisdiction or rule. The ocean dwellers did not trust the people on land so they authorized a giant submarine to oversee disputes.
    One thing is certain, human nature. How future space exploration and colonization conducts itself is highly depends on what we find there. If it is expensive, with no return on capital spent, it becomes a rich man’s game for notoriety and uniqueness. Getting one’s name in the history books.
    If they find gold, expect the gold rush… complete with lawlessness, claim jumping, robotic militaries where “might makes right” and A person only owns something if they have the ability to defend it. If such wealth is found out there, you can bet they will use that wealth to not just defend themselves, but to make sure that no one from the little planet earth could attempt to take it away from them and they will take aggressive action to prevent anyone from leaving earth to secure them selves. Trade will occur, but only at their discretion.
    cooperation is desired, greed will destroy everything built. All is meaningless without survival, which will be the foundation that everyone will agree to initially. Keep the colonists dependent on earth, rebellion will be unlikely. They will not mind they’re semi slavery if they are kept fed and happy with rewards for good behavior and productivity.
    I heard recently that five multinational companies have more wealth than any but the United States. The likelihood is high that any treaty to come forward will be written and enforced by these companies. Movies such as “outlander” “total recall” explore these concepts.

  • LocalFluff

    “ocean treaties would be similar to space treaties.”

    Good analogue!
    The sea treaties, or navigation acts, during the 18th and 19th centuries when the world was civilized, said that only British ships may arrive in British ports. And all British ships must have only British crews. And the colonies must ship all their export to Britain only.

    That is what has actually been done, and that is what made Britain great. That’s the realistic plan. Other ideas are just crazy scribbles. Let’s not go experimental here when we are dealing with serious things like law and blood. We know from experience what works. Keep to it.

  • wayne

    Exploring Liberty:
    “Simple Rules for a Complex World”
    Prof Richard Epstein

  • Edward

    You wrote: “The US has already established a very strong brand name in this.

    No more than any other country. It was England that brought slavery to the US by enslaving people from a different continent and shipping them unwillingly to its North American colonies. European countries went all around the world claiming territories out from under their native peoples.

    You seem to be accusing the US of doing what was usual behavior at that time, but it was the US that invented more benign behaviors, such as giving the Philippines their independence a few years after having liberated them from Spain. Before that time, how many other countries had granted independence after only a mere request by the population (and how many since)? It was the US that let Mexico retain its own independence after winning the Mexican-American war, at a time when wars were for conquest. What happened to Cuba after the US took it from Spain in the Spanish American war? (Hint: the US favored Cuban independence from Spain, supporting the Cuba Libre movement.) It was not the people in other countries but the abolitionists in the northern colonies that first decried slavery, and it was their descendants that fought and died in order to overcome the inherited, deeply ingrained slavery in the southern colonies, left over from King George’s reign.

    That is why the US declared the Moon as US sovereign territory when Apollo 11 made landfall, as has been the centuries-long tradition of other nations. Oh, wait …

    Except for the US Canadian border, every national border on Earth was established by war.

    The US may not be perfect, but it seems to be doing better than all the rest.

    LocalFluff wrote: “that is what made Britain great.

    Actually, mercantilism was a major reason for the American colonies to declare independence. From the Declaration of Independence: “For cutting off our Trade with all parts of the world” Britain was great before it started practicing mercantilism, but this practice helped to cause the beginning of the end of the British Empire.

    Max wrote: “If they find gold, expect the gold rush

    The suspected water at the pole(s) on the Moon is almost worth its weight in gold, since it costs so much to lift fuel from the Earth to low Earth orbit. In space, that is the equivalent to gold, and I expect a rush to get it to turn most of it into fuel for spacecraft.

    Max wrote: “cooperation is desired, greed will destroy everything built.

    In most gold rushes, greed did not destroy too much that was built, as most people behaved relatively civilly. However, there was a time when it was difficult to find a crew to sail a ship out of San Francisco Bay. I expect that there will be civil behavior in space, as well, and maybe a bunch of abandoned spacecraft, too.

  • ken anthony

    Great link Wayne. Ignoring fundamentals is the biggest problem of humans.

  • ken anthony

    Actually he lost me with taxation and eminent domain.

    But good up to tort.

  • wayne

    highly recommend pretty much anything from Prof Richard Epstein.

    Richard Epstein –
    “Obama Explained”
    –clip from “Uncommon Knowledge”

  • LocalFluff

    The Europeans didn’t enslave people. They bought slaves in Africa. Although there’s a big difference between their traditional household slavery and hard plantation work after a cruel Atlantic crossing. But they were trade goods.

    “That is why the US declared the Moon as US sovereign territory when Apollo 11 made landfall”

    They should’ve. They should do so today. Foreigners who want to contribute the Moon’s development in place should be invited to do so, as long as it doesn’t conflict with US interests. Just like foreigners are welcome to invest in (the rest of) the US. One doesn’t have to be as protective as the UK navigation acts. If they have other intentions on the Moon, they should be stopped. I think there are good things to learn from the period of high imperialism, between the civil war and the first world war. The US has never been as dominant in the world as since the last 27 years. It should recognize this fact, and not give others undue influence, and is maybe waking up to it with Trump now.

    I just happened to watch a lecture on the Philippine war 1899-1902. There was really not much competent resistance. The Spanish knew they were facing a modern navy and put their ships on shallow waters so the crews could walk ashore once their ships were sinking. Philippines did not view each other as belonging to the same nation. Traditional culture made the soldiers feel that they did not need to risk their lives for their officers. The Americans were used with this kind of insurgence warfare against the Indians, but attacked frontally as in the civil war, but the Philippines retreated from their prepared positions when at 300 yards distance, before any serious killing could take place. The business class became pro-American because of their hemp export. Philippines who surrendered kept their position in society, they were co-opted to go on as usual, the US had little interest in changing anything anyway. And the resistance leader, who was of an ethnic group that was impopular after historical acts of violence, murdered his near advisers to get rid of rivals and found no foreign support. The US became very popular in the Philippines during the decades after the war. Remember McArthur saying: “I’ll be back” when he left as the Japanese took over briefly. His father led the conquest 40 years earlier, now they were firmly on the same side. Compare this with Iraq or Afghanistan today.

    Funny details:
    The civil governor, Taft, was so fat that he brought his own bath tub to the Philippines, one that he could fit into.

    The navy fired warnings shots as they arrived at Guam, to give them a chance to surrender without bloodshed. The Spanish commander rowed out to the Americans in a canoe and said he was sorry he could not reply to what he thought was their salute! he didn’t know they were at war. The US commander said he was sorry top and put him in arrest.

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